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

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

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

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

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

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

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

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

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

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

This week on Legally Speaking with Michael Mulligan:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week on Legally Speaking with Michael Mulligan:

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

Neither man had a previous criminal record.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week on Legally Speaking with Michael Mulligan:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week on Legally Speaking with Michael Mulligan:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week on Legally Speaking with Michael Mulligan:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week on Legally Speaking with Michael Mulligan:

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

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

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

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

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

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

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

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

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

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

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

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

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

This week on Legally Speaking with Michael Mulligan: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This week on Legally Speaking with Michael Mulligan:

An appeal by a 13-year-old girl who was found to be not criminally responsible as a result of a mental disorder (NCRMD) provides insight into how criminal law deals with mental illness.

The girl in question was described as having a childhood that was troubled: a history of neglect, a family history of substance use, mental health issues and suicides. She had been receiving assistance for her mental health since she was eight years old and had been hospitalized for mental health issues numerous times since she was ten years old.

She was charged with various offences including mischief for throwing cups, plates, and food in her group home, sealing two lighters from a corner store, lighting some nearby shrubs on fire, and assaulting a nurse and security guard in a youth mental health facility.

After the girl stole the lighters from the corner store, she was committed under the Mental Health Act. The Mental Health Act, in British Columbia, permits someone who is a danger to themselves or others to be kept in hospital for involuntary treatment.

When the criminal cases got to court, there was an assessment done to determine if the girl was “fit to stand trial”. This requires someone to have a basic understanding of things like what the charges are, who the various people in a courtroom are. She was found to have this capacity and so the case was permitted to proceed.

A further assessment diagnosed the girl as suffering from several mental health issues: psychosis, likely caused by childhood schizophrenia, complex posttraumatic stress disorder, attachment disorder, polysubstance misuse, drug-seeking behaviour, and significant abandonment issues with respect to family and system.

Both lawyers agreed, and the trial judge found, that the girl met the test for being NCRMD. This can occur if a judge finds that someone was incapable of appreciating the nature and quality of an act of omission or knowing that it was wrong. This state of affairs must also be caused by a “disease of the mind” and not, for example, self-induced intoxication.

With the assistance of another lawyer, the girl unsuccessfully appealed the NCRMD finding on the basis that she wasn’t told that it could result in her being kept in hospital indefinitely unless a review board was satisfied that she didn’t pose an undue risk in the community.

An NCRMD finding results in someone being dealt with in the hospital, rather than jail. The time in hospital, or being subject to conditions may be much longer than a regular sentence for the same offences.

Also on the show, the process for qualifying as a lawyer is discussed in the context of a student challenging a finding that they didn’t adequately complete a contract drafting assignment.

To qualify as a lawyer in British Columbia, someone needs to complete a law degree, article for 9 months, and then complete and pass a 10-week course called PLTC: the Professional Legal Training Course. Articling involves working with a senior lawyer to develop practical skills. The PLTC course also teaches and examines practical legal skills.

Finally, on the show, an unsuccessful judicial review by an Abbotsford police officer was dismissed following a series of unfortunate instances of misconduct that started with the officer meeting a much younger woman in the course of his duties.

The misconduct included falsely claiming that the younger woman, and her daughter, were living with the officer so that they could take advantage of his medical benefits. This eventually resulted in criminal convictions for defrauding the insurance company.

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

This week on Legally Speaking with Michael Mulligan:

Recently, small groups of protesters have been intentionally blocking  highways to get attention for their cause and to compel the government to meet various demands.

So far, police have exercised restraint and have attempted to  persuade the protesters to move before arresting them. The police are not, however, required to wait any period of time before arresting people who are committing a criminal offence.

As discussed on the show, section 423 (1) (g) of the Criminal Code makes it an offence, punishable by up to five years in jail, to block or obstruct a highway for the purpose of compelling any other person to abstain from doing anything they that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing.

While there is a right to freedom of expression in Canada, that right does not permit expression in any way someone wishes. Assaulting someone might also be a form of expression, but it is also prohibited.

Section 423 (1) (g) is premised on the obstruction being intentional and for the prohibited purpose. It would not criminalize a very large group of people marching and protesting who incidentally caused traffic to slow down, for example.

Also discussed on the show are various sections of the Criminal Code that permit people to act on their own, to arrest or stop someone from committing a criminal offence.

Section 494 permits anyone to arrest someone they find committing a criminal offence. If you arrest someone pursuant to this section, you are then required to deliver the person to a peace officer. This section could have application if a highway was being blocked in a remote location where police were not readily available.

Section 27 of the Criminal Code also permits anyone to use as much force “as is reasonably necessary” to prevent the commission of an offence, such as obstructing a highway contract to section 423 (1) (g), but only is the offence is “likely to cause immediate and serious injury to the person or property of anyone”. This section could have application if a highway blockade was preventing someone from obtaining emergency medical assistance.

Section 30 of the Criminal Code also permits anyone who witnesses a “breach of the peace”, which is not defined, to detain someone who is causing the breach of the peace, or about to join or renew a breach of the peace for the purpose of “giving him into the custody of a peace officer”. This section would have clear application to, for example, stop someone who was participating in a riot.

Section 32 (3) of the Criminal Code also deals expressly with riots and provides that “every one is justified in obeying an order of a peace officer to use force to suppress a riot if (a) he acts in good faith; and (b) the order is not manifestly unlawful.”

Also, on the show, the case of a babysitter who plead guilty to criminal negligence causing the death of a 17-month-old she was caring for is discussed.

The babysitter was sentenced to 1-year in jail back in 2013 after the child drowned in a small amount of water in a bathtub.

Because the Crown failed to provide the babysitter, or her lawyer, with 140 pages of material including a medical report showing that the child had been hospitalized for a post-viral brain infection two months before her death, as well as material that cast doubt on the reliability of the Crown’s expert pathologist, the Court of Appeal has allowed an appeal to proceed many years after the jail sentence has already been served.

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

This week on Legally Speaking with Michael Mulligan:

Mediation efforts to resolve civil or family disputes are typically treated as being confidential and can’t be referred to if the case winds up in court. The reason for this is to permit candid discussions and compromise that result in disputes settling before going to trial.

A recent Supreme Court of Canada case considered the admissibility of a “summary of mediated agreement” that was prepared following the mediation of a family law dispute. This summary was prepared by the mediator and, while not signed by either party, was adhered to by each of them for more than a year.

Eventually, the mother in the family dispute decided to go to court to ask for more money than what was agreed to in the mediation. The father in the dispute asked that the agreement reached in the mediation be enforced.

Ultimately, the Supreme Court of Canada concluded that the concept of a “settlement exception” applied to the summary of mediation agreement and the father was entitled to rely on it in court. The decision is intended to promote mediation as a means of resolving family law disputes by permitting the parties to rely upon agreements reached in this way.

Also, on the show, a judicial review of a BC Human Rights Tribunal decision is discussed. The unsuccessful judicial review involved a resort and spa that was purchased by a man from Hong Kong. The new owner was found to have made comments including that there were “too many white people” working at the resort, and that if hired Chinese employees because he believed they would not ask for overtime pay or pay for statutory holidays.

Eight former Caucasian employees who lost their jobs brough the claim on the basis that they were desecrated against based on their race.

One former employee also brought a successful claim based on discrimination based on sex because the new owner took her on a business trip to Hong Kong, where he booked a single hotel room for them to share after taking her though a market that sold sex toys.

The judicial review, brought by the spa owner, was unsuccessful because he couldn’t demonstrate that the findings of the tribunal were patently unreasonable.

Finally, on the show, a dispute between two former business partners who owned Kwantlen Pizza Sweets & Snacks is discussed.

When the former business partners decided to separate, they came to an agreement to divide their business interests into two parts and then draw lots to determine which of them would get which part of the business. The agreement also provided that the former partner who didn’t get the Kwantlen Pizza part of business couldn’t open another Kwantlen Pizza within 4km.

Sometime after the separation a “Kwantlen Pizza & Curry House” was opened a short distance from the Kwantlen Pizza Sweets & Snacks location.

The former business partner who received the original Kwantlen Pizza Sweets & Snacks business brought a successful application for an interim injunction to prohibit his former business partner from being involved with Kwantlen Pizza & Curry House, despite a claim that this restaurant was being operated by his brother.

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

Could the very pillars of legal independence be shaking in British Columbia? Michael Mulligan, Barrister and solicitor of Mulligan Defence Lawyers, joins us in dissecting the controversial Legal Professions Act. His perspective shines an unflinching light on how this act could threaten the impartiality crucial to our justice system and the public interest. Get ready for a stirring analysis of the government's rush to legislate, the alarm sounded by legal professionals, and the constitutional challenges now rising to the surface.

Switching gears, we take a closer look at a recent manslaughter case that has left the legal community and public pondering the nuances of justice. Mulligan unpacks the sentencing of a Trinity Western University security guard, convicted of manslaughter and handed an 18-month conditional sentence. This segment explores the delicate balance of judicial discretion, weighing intent against outcome and character against the gravity of loss. We'll also touch upon the escalating stakes in residential tenancy disputes finding their way to the Supreme Court, showcasing the evolving landscape of legal accountability and the complexities that lie therein.

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

This week on Legally Speaking with Michael Mulligan:

The approval of COVID-19 vaccines for children ages 5 – 11 has resulted in family law disputes between separated parents who disagree about getting their children vaccinated.

A number of these cases have now been litigated, across Canada, and the consistent outcome has been for court orders permitting the children to be vaccinated, despite the objection of one parent.

On the show, one of these cases is discussed which involved two children, aged 10 and 12. The mother of the children wished to have the children vaccinated, while the father objected based on information he had gathered from the internet.

The father had been providing age-inappropriate information he had collected from the internet to the children to persuade them that the COVID-10 vaccine was not safe. 

Because judicial decisions require a reasoned analysis, and explanation for how a decision has been reached, these cases afford an objective assessment of evidence concerning the safety and efficiency of COVID-19 vaccines for children.

Legal disputes of this kind are determined based on an assessment of what’s in the best interest of the children.

This judge in the case discussed ordered that the mother was free to get the children vaccinated, despite the objections of the father. The father was ordered to stop providing the children with the material he was collecting on the internet claiming that the vaccine was unsafe.

Also on the show, provisions of the BC Emergency Program Act and the COVID-19 Related Measures Act, that limit liability for spreading COVID-19 are discussed.

Ordinarily, people and organizations owe a duty of care to avoid acts or omissions that could cause harm to others. The standard of care that a person or organization owes would be assessed based on what a reasonable person would do. If a person or organization fails to act reasonably, they can be liable for damages that result based on their negligence.

The BC acts discussed limit liability for acts or omissions related to COVID-19. They exempt the government, and others, from liability for action or inaction related to COVID-19 except in cases of “gross negligence”.

Gross negligence is a legal term that has been interpreted by the courts to mean conduct that is a very marked departure from the standard of a reasonable and competent person. The standard of care implied by gross negligence can be modified where the standard of care is very high.

In BC the provincial government has made vaccination for government employees mandatory. Those who chose not to be vaccinated for COVID-19 have been placed on unpaid leave and will eventually be terminated if they do not get vaccinated. Despite clear legal authority to require the same of teachers, they were exempted from this requirement, and it was left to the school boards to mandate vaccination.

Various school boards have decided not to require teachers and staff who are interacting with young children to get vaccinated.

Because COVID-19 vaccines for children ages 5-11 were only made available at the beginning of December, and because an eight-week delay between first and second doses was decided on, almost no children under age 11 in BC have been fully vaccinated.

As a result, teachers or school staff who decide to keep working without being vaccinated, as well as school boards and the provincial government, may be liable for the transmission of COVID-19 to school children and their families if their conduct is found to constitute gross negligence.

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

This week on Legally Speaking with Michael Mulligan:

There are two kinds of Mischief offences in the Criminal Code:  Mischief, and Public Mischief.

Mischief is defined and prohibited by section 430 of the Criminal Code. This section makes it an offence to, amongst other things, damage or destroy property or to interfere with the lawful use, operation or enjoyment of property. This section applies if someone wilfully damages property by, for example, spray painting graffiti on a wall or blocking access to a business.

Public Mischief is an offence pursuant to section 140 of the Criminal Code. This section makes it an offence to make an intentionally false report to the police, causing them to start or continue an investigation.

The Mayor of Surrey was recently charged with Public Mischief for allegedly making a false report that a protester drove her car over his foot.

As discussed on the show, not every criminal trial that results in an acquittal based on a judge disbelieving a complainant produces a corresponding charge of public mischief. This is because of the need to prove a criminal charge beyond a reasonable doubt and this same standard would apply to a charge of public mischief.

Also on the show, a BC Court of Appeal case dealing with the concept of counselling an offence is discussed.

Counselling an offence involves encouraging someone else to commit an offence. If someone counsels an offence, they become a party to the offence even if they did not do anything else in relation to the offence. For example, if someone encourages other people to block access to a business as a protest, they would be guilty of mischief even if they didn’t block the entrance to the business themselves.

The Criminal Code even makes it an offence to counsel an offence that does not take place.

In the case discussed, however, the accused was charged with counselling the offence of uttering a threat. The evidence only established that the accused asked another person to “intimidate” his estranged wife. Because of how the offence was charged, and because intimidation could involve activity other than uttering a threat, the conviction for uttering a threat was overturned on appeal.

Finally, on the show, the Parity Principle is discussed in the context of a sentence appeal.

The Parity Principle of sentencing is codified in section 718.2 (b) of the Criminal Code: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
In the case discussed two men who participated in a home invasion-style robbery were sentenced to 5 and 3 years in jail.

The judge who sentenced the men was led to believe that the man who received the 5-year sentence was on bail at the time of the offence and should therefore receive a longer sentence.

The man who received the 3-year jail sentence was, however, serving a community-based sentence at the time of the offence so this was a similarly aggravating circumstance.

The man who received the 5-year sentence was successful in appealing his sentence based on the Parity Principal and had his sentence reduced to 4 years. There were some aggravating circumstances relating to what this man did during the robbery but not enough to justify a sentence that was 2 years longer than for the other man.

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

This week on Legally Speaking with Michael Mulligan:

The previous Conservative federal government added numerous mandatory minimum jail sentences to the Criminal Code and Controlled Drugs and Substances Act. While they have failed to deter crime, they have contributed to the disproportionate number of indigenous and Black Canadians in jail.

Indigenous Canadians represent approximately 5 percent of the population but are 30 percent of federal prisoners. This is double the percentage from twenty years ago.

Black Canadians represent 3 percent of the population but are 7.2 percent of federal prisoners.

Recently introduced Bill C-22 will eliminate 14 of 64 mandatory minimum sentences for everything from possessing tobacco without excise tax stamps, to various firearms and drug offences.

Since the mandatory minimum sentences were introduced, many of them have been struck down as being unconstitutional because they resulted in sentences that were found to be “grossly disproportionate”.

Almost nobody knows what the patchwork of mandatory minimum sentences are, or when they would apply, making them completely ineffective at deterring crime.

Criminal Codes have had to add charts that run on for hundreds of pages to clarify what sentences apply to various offences. Not many people are consulting the charts before deciding if they will attempt to get away without the required stamp on their tobacco products.

Also on the show, a Notice of Civil Claim commencing a lawsuit against four former Esquimalt Police Officers is discussed.

The claim is being brought by a woman who, in 1988, was recruited to be a police informant while she was in Grade 9 at Esquimalt High School. She alleges that she was subjected to a range of abuse by the police officers including numerous sexual assaults. She further alleges that the police officers directed her to engage in activity including making false reports to Crime Stoppers.

The Notice of Civil claim indicates that a 1995 investigation by the Victoria Police Department concluded that the woman was an honest and reliable individual and that many of her allegations were corroborated by other witnesses and or supporting records. It indicates that the woman suffered overwhelming emotional and psychological terror and was unable to complete her testimony at a resulting inquiry.

While the allegations in the Notice of Civil claim have not been proven in court, they raise significant public policy questions including the appropriateness of permitting minors to be paid police informants given their vulnerability to abuse.

If police officers were utilizing a paid informant to make false reports to Crime Stoppers, this is also of serious concern. Anonymous Crime Stoppers reports can serve as the basis for search warrants being issued, and police investigations to be undertaken. People making anonymous reports can also be paid. The system is clearly susceptible to abuse of the kind alleged.

As discussed on the show, one of the former police officers accused of wrongdoing has been the subject of judicial criticism for the reliability of his evidence in court.

Finally, differences between the Canadian and US jury systems are discussed in the context of a recently overturned murder conviction in Washington state. In the US, unlike in Canada, jurors are both permitted to discuss what occurred during deliberations and are subject to routine questioning before being allowed to serve on a jury.

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

This week on Legally Speaking with Michael Mulligan:

The BC Court of Appeal recently allowed a sentence appeal by the Crown and converted a two-year conditional sentence, sometimes called house arrest, into a regular jail sentence for a bookkeeper convicted of defrauding her employer.

Because the bookkeeper had a previous conviction for similar behaviour and was acting in a position of trust, the two-year jail sentence was not surprising. A theft or fraud committed by someone in a position of trust is more serious than theft or fraud committed by a stranger.

A sentence appeal is not, however, a matter of asking the Court of Appeal to substitute its judgment for that of a trial judge. Trial judges have a wide discretion to determine an appropriate sentence.

The sentence appeal was allowed because the trial judge had accepted as true a submission by the defence that the offending occurred as a result of depression and drug addiction when that was denied by the Crown.

At a sentencing hearing, the Crown and defence can make submissions about aggravating, or mitigating, factors that would have an impact on the sentence. Where the other party doesn’t deny the aggravating or mitigating factor a judge can proceed on the basis that it’s true.

In this case, however, the Crown denied that depression or drug use was the reason for the fraud. Where a factor like this is denied, the other party should be given an opportunity to prove it and, if that is not done, the judge should not consider the alleged factor.

Also on the show, the evolving directions for virtual court appearances in Provincial Court are discussed.

As a result of COVID, the BC Provincial Court has made significant use of MS Teams for virtual court appearances. In addition to health considerations, this has allowed for increased efficiency with suitable matters being dealt with remotely and judges from across the province being able to deal with cases in other locations.

Rules of decorum for virtual court appearances have been evolving. They now include a desire for neutral backgrounds, as well as what would have seemed obvious like not eating, drinking, or smoking during a court appearance.

Finally, a Supreme Court of Canada case dealing with the Income Tax Act provision referred to as the GAAR or the General Anti-Avoidance Rule is discussed.

The GAAR is controversial because it purports to prohibit “abusive” tax transactions that are permitted by the wording of the Income Tax Act.

The GAAR acts as a limit on both tax certainty and the well-accepted principle that taxpayers are entitled to arrange their affairs to minimize the amount of tax payable.

The legal test to determine if the GAAR prohibits a transaction turns on whether it’s “abusive”. This, in turn, is based on an assessment of the “object, spirit, and purpose” of whatever rule is at issue.

In the case discussed, which involved a complicated corporate structure that relied on a tax treaty with Luxembourg, the GAAR was found not to apply because the purpose of the tax treaty was to encourage investment in Canada even if less tax might be collected in Canada.

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

This week on Legally Speaking with Michael Mulligan:

The obstruction of roads and highways has become an increasingly common method of protesting various things.

As discussed on the show, blocking or obstructing a highway, and in so doing, preventing anyone from doing anything they have a right to do, is a criminal offence pursuant to section 423 (1) (g) of the Criminal Code. The office is punishable by a maximum of five years in jail.

Section 2 of the Charter permits “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” This does not, however, permit someone to express themselves in any way they wish. This section provides no authority to block a highway or spray-paint your thoughts on someone’s property.

The police have broad discretion with respect to how they enforce the law and can exercise discretion to delay arrests for a criminal offence if they choose. There is nothing but discretion on the part of the police, however, that would preclude the immediate arrest of anyone blocking or obstructing a highway.

“highway” is a defined term in the Criminal Code and means “a road to which the public has the right of access, and includes bridges over which or tunnels through which a road passes.”

Also on the show, Ministerial Order 454 is discussed. This order was made pursuant to the Emergency Program Act and limits the amount of gas that can be purchased to 30 litres because of shortages caused by the storm that damaged roads and pipelines in British Columbia.

The order also restricts the profit margin of fuel wholesalers and retailers to the gross profit margin achieved for the 90 days prior to the date of the order.

The restrictions were made necessary, in large part, because of the shutdown of the Trans Mountain pipeline for repairs.

The combination of orders to prevent price rises, and restrict purchases, may be difficult to enforce if the shortage of fuel persists. It relies largely on voluntary compliance and signs posted on gas pumps.

Recent economics research shows that short-term fuel demand is more variable based on price than previously believed. For each 1% increase in gas prices, demand decreases by approximately 0.37%.

An alternative approach to a short-term fuel shortage would be a short-term, emergency, tax to reduce demand. If the tax was significant, and then it was made clear how long it would last, people would be incentivized to only purchase what they required prior to the tax ending.

Finally, a BC Court of Appeal sentence appeal for a man convicted of selling marijuana, in a compassion club, prior to the laws changing which now allow for the sale and possession of marijuana is discussed.

The sentence appeal took some time to be heard because conviction appeals are decided before sentence appeals where both a conviction and sentence are being appealed.

The man was originally sentenced to one day in jail, and a fine. His sentence appeal was allowed because the trial judge who imposed the sentence didn’t explain why a conditional discharge was not imposed.

A conditional discharge is associated with a period of probation and, if successfully completed, someone is deemed not to have been convicted of an offence.

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

This week on Legally Speaking with Michael Mulligan:

More than three days after flooding caused massive damage in BC, the provincial government declared an emergency pursuant to the Emergency Program Act.

The emergency declaration lasts for up to 14 days and can be renewed.

Pursuant to the authority this affords, the provincial government has restricted travel on damaged highways and has limited consumers to purchasing no more than 30 liters of fuel at a time.

The provincial government doesn’t directly employ people to repair roads and relies on contractors for the work that is required.

The provincial government does, however, have a direct role in providing information during an emergency. In this case, very little information was made available by the provincial government for several days. Timely information concerning damage and repair efforts was available on social and traditional media.

In addition to authorizing emergency orders, the Emergency Program Act prohibits civil claims against the government or people asked to conduct repair work relating to disasters for anything they do, or fail to do, absent gross negligence.

A small claims case over a couch damaged by a moving company is also discussed on the show.

The couch was damaged while attempting to move it through a door to an apartment.

The moving company relied on provisions of an email sent to the couch owner, after she booked the move, the purported to limit the liability of the moving company for items that were damaged in the move.

The legal principles discussed included the concept of a “bailee for reward”.

A bailee for reward is someone paid to keep or deal with property. It’s distinct from someone who agrees to do this for free, such a friend who helps you move.

A bailee for reward has the onus of proving that damage to property they were paid to deal with was not damaged by negligence.

A second legal principle that was relevant to the case was that limits of liability unilaterally added after a contract is entered into may not be effective. In this case, the email with the limitation on liability was sent after the contract to move the couch was entered into over the phone.

Finally, on the show, a Supreme Court of Canada case dealing with sentencing “ranges” or “starting points” is discussed. The case involved two men who were convicted of trafficking large amounts of fentanyl. They were sentenced to 7 and 11 years at trial. The Alberta Court of Appeal increased the sentences to 10 and 14 years saying that the starting point for this offence should be 10 years.

The concept of a Court of Appeal setting a starting point for sentences is controversial because parliament hasn’t seen fit to set a minimum sentence and because the Court of Appeal is only supposed to interfere was a sentence imposed by a trial judge if it’s demonstrably unfit.

The Supreme Court of Canada upheld the increased sentences, and the idea of a starting point or range of sentence being set out by a Court of Appeal. It did, however, conclude that a sentence imposed outside of the range or below the starting point should not be overturned on appeal only because it’s outside of the specified range.

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

This week on Legally Speaking with Michael Mulligan:

A senior Saanich Police Officer was fired after the Police Complaints Commissioner confirmed a finding that he had committed 14 counts of Deceit as well as Discerptible Conduct and Neglect of Duty for falsifying the recertifications of other officers as Drug Recognition Experts.

The fake recertification of other officers as Drug Recognition Experts would have permitted them to test people suspected of driving under the influence of drugs.

The senior officer, who has yet to be identified, engaged in this conduct over an extended period, apparently commencing in 2016. 

While the Office of the Police Complaints Commissioner reported the findings in his annual report, he did not identify the officer. So far, the Saanich Police department has also not identified the officer. 

The discipline process took so long that the officer retired before the discipline hearing and then failed to show up. His firing, and a reduction in rank, were made retroactive. 

The officer responsible for the fake recertifications should be identified, and further inquiries should be made to determine if the officers he improperly recertified were complicit in what transpired. 

People who were subject to criminal charges or administrative driving prohibitions based on the tests conducted by the improperly recertified officers should also be notified. 

Also on the show, the Supreme Court of Canada has refused a leave application by the Highlands District Community Association which opposed a rock quarry in the Highlands. 

A rock quarry is a kind of mine and approval is provided by the provincial Mines Inspector, rather than the municipal government. 

In granting approval the Mines Inspector considered a wide range of factors, including watercourses, the protection of cultural heritage, and plans to reclaim the land once the mining is complete. The Mines Inspector did not, however, consider the climate change implications of the rock quarry.

The Highlands District Community Association tried, unsuccessfully, to overturn the approval for the rock quarry by a judicial review, an appeal to the BC Court of Appeal, and finally an attempt to appeal to the Supreme Court of Canada. 

An appeal of this kind to the Supreme Court of Canada requires permission, referred to as leave. Generally, leave will only be granted for legal issues of national importance. 

While climate change is clearly an important issue, it is being cited as the reason for opposing everything from cars parking at Clover Point, to plastic shopping bags and, in this case, a rock quarry. In this case, the claim that climate change had not been considered did not transform a dispute about a rock quarry into a matter of national legal significance. 

Finally, on the show, a claim for pay in lieu of notice for being laid off due to COVID, and then not being rehired is discussed. 

While the judge concluded that the marketing manager who was not rehired at a car dealership was entitled to some compensation, this was reduced by the amount of money she had received from the CERB program. She received $15,000 rather than the $40,000 she was asking for.

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

This week on Legally Speaking with Michael Mulligan:

Who is in jail and why? In Canada, the responsibility for jailing adults is divided between the federal and provincial governments. The federal government is responsible for penitentiaries, where people serve sentences longer than two years. The provinces are responsible for jails for people serving shorter sentences and for people who are in jail waiting for their trial.

In British Columbia, 63% of people in provincial jails are waiting for their trial. 36% of people are serving sentences and 1% have been detained by the Canadian Border Services Agency. There has been a long-term trend increasing the percentage of people in jail waiting for trial.

69% of the people in provincial jails have either a mental health or substance use disorder. 42% have both a mental health and substance use disorder.

In British Columbia, 35% of people in provincial jails are indigenous. Indigenous people make up 5-6% of the population in British Columbia.

The cost of keeping someone in a provincial jail is $259 per day. This is less than the $318 per day cost to keep someone in a federal penitentiary where more rehabilitation programs are available.

The cost of detaining someone in a provincial jail to wait for their trial is $7,770 per month.

As discussed on the show, this $7,770 per month cost provides an important reference point when assessing the cost of mental health and addictions services that can reduce the number of people committing offences and ending up in jail.

Also on the show, a BC Supreme Court decision to recognize an order from a court in Pakistan and return a 12-year-old boy despite objections from the child’s mother who alleged the order was made in accordance with Sharia law rather than in accordance with the best interest of the child.

The governing provisions of the BC Family Law Act are found in Part 4, Division 7 of the Act: Extraprovincial Matters Respecting Parenting Arrangements. Judges are directed not to make findings of fact on disputed evidence or to decide the merits of the case beyond what is necessary to determine the issues of territorial jurisdiction.

The idea of these provisions is to avoid parents bringing children to BC from other jurisdictions to re-argue custody decisions.

The mother in the case alleged that the court in Pakistan was applying Sharia law which directs that fathers should be given custody of male children, aged seven or more.

In rejecting the mother’s claims that the order from the court in Pakistan shouldn’t be followed, the BC Supreme Court judge deciding the case considered the fact that the court in Pakistan had not given custody to the father when the child turned seven.

There was conflicting expert evidence concerning how courts in Pakistan integrate Sharia law with the best interests of the child.

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

This week on Legally Speaking with Michael Mulligan:

The MV Zim Kingston lost 109 containers, near Vancouver Island, containing everything from yoga mats to car parts and chemicals. Some of the containers, and their contents, have been washing up on Vancouver Island beaches. 

One of the legal issues raised by this is the legal right to salvage material.

With thanks to Darren Williams, an expert in marine law, the legal status of the shipping containers is discussed on the show. 

The starting point is that the shipping containers are personal property. This does not change because they fell off the ship as the owners haven't abandoned the property.   

In addition to the potential hazard, opening or entering a container could amount to a tort referred to as “trespass to chattels”. 

There are circumstances where a shipping container could be “salvaged” by someone who located it. Before attempting to salvage a wreck, however, the salvor must contact the owner before touching the property or, if the owner is unknown or can’t be contacted, the Receiver of Wreck must be contacted. The Receiver of Wreck has authority pursuant to the Canadian Wrecked, Abandoned or Hazardous Vessels Act.

The concept of salvage involves saving a vessel or cargo from loss, rather than just taking something that is on the breach. Where a person engages in the salvage of a vessel or cargo, they may be entitled to reasonable costs and expenses for the salvage. If the Receiver of Wreck is unable to find an owner of the vessel or cargo, the person who salvages it may be awarded the wreck or the money from its sale. 

Returning to the containers that fell off the MV Zim Kingston, someone who locates one should call the Canadian Coast Guard at 1-800-889-8852. 

Also on the show, October 27 was the first National Duty Counsel Day recognizing the important work performed by Duty Counsel.

In BC, Duty Counsel are private lawyers who are retained, for a modest fee, by the Legal Services Society, to provide summary advice and assistance to people with criminal, family, or immigration law issues, who cannot afford a lawyer and who would otherwise be in court on their own. They can be found at Provincial Court locations around BC on days when recently arrested people or those with family or child protection matters are first attending court. 

Duty Counsel can’t conduct trials but can help with bail hearings, guilty pleas, efforts to negotiate family law issues, or the provision of summary advice. 

Information concerning the availability of Duty Counsel is available by calling 1-866-577-2525.

Finally, on the show, a Supreme Court Judge granted a statutory injunction ordering a restaurant to close because of repeated failures to check the COVID-19 vaccination status of customers, as is required by a Public Health Order.

The restaurant had been fined, on multiple occasions, and had its business licence revolved, for failing to comply with the Public Health Order.

As a result of the injection, the police will ensure that the restaurant remains closed. 

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

This week on Legally Speaking with Michael Mulligan:

In 2012 the self-defence provisions of the Criminal Code were rewritten. 

The new provisions only permit self-defence to apply if the act in question was “reasonable in the circumstances”.

When deciding if an act is reasonable in the circumstances, the new section provides a non-exhaustive list of things to be considered by a judge or jury:

• (a) the nature of the force or threat;
• (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
• (c) the person’s role in the incident;
• (d) whether any party to the incident used or threatened to use a weapon;
• (e) the size, age, gender and physical capabilities of the parties to the incident;
• (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
• (f.1) any history of interaction or communication between the parties to the incident;
• (g) the nature and proportionality of the person’s response to the use or threat of force; and
• (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

The long, non-exhaustive, list of factors that must be considered makes it hard to predict what a judge or jury will conclude. 

In the case discussed, a man, unfortunately, named Mr. Khill, was charged with murder. Mr. Khill was asleep in bed when he was woken up by his wife who heard a noise outside. Mr. Khill looked out the window and saw the interior light on his truck was on. He went to investigate carrying a loaded shotgun. 

When Mr. Khill got to his truck, he saw someone in the passenger side and yelled “Hey, hands up!” The person, who had apparently been breaking into the truck, turned towards Mr. Khill and raised his arms in a way that caused Mr. Kill to believe he was holding a gun. Mr. Khill shot the man, twice, killing him. A search of the deceased revealed a knife in his pocket, but no gun. 

At his murder trial, the jury acquitted Mr. Khill. 

The Crown appealed and was successful in having a new trial ordered because the trial judge had not explained what “the person’s role in the incident” meant in the list of reasonableness factors for the jury. The majority of the Supreme Court of Canada upheld the order for a new trial, concluding that “the incident” could include things before the actual confrontation such as the decision to bring a shotgun when investigating the truck being broken into. 

As a result, Mr. Khill will need to stand trial a second time. 

Also on the show, a case involving a claim of negligence for failing to locate a colony of bats roosting in the attic of a house that was sold.

The house sale included a Property Disclosure Statement certifying various things including any known rodents.  

The judge concluded that the seller didn’t know about the bats, was not negligent in not knowing about them, and the Property Disclosure Statement was not inaccurate because bats are not rodents. 

Finally, a case involving an appeal from a waived in drug trafficking charge is discussed. The concept of waiving a charge can only occur where an accused person is pleading guilty. 

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

Discover the unexpected legal twist when a skid steer transforms from a farm machine into an alleged weapon! Michael Mulligan, our expert from Mulligan Defence Lawyers, is back to dissect a peculiar case from Vernon where a man faces assault charges for using his skid steer in a dispute with homeless trespassers. Learn what makes a skid steer a "weapon," and get a masterclass in the legalities of assault and dangerous driving. Plus, we'll navigate the nuances of a justice system where the Supreme Court's interpretation can turn the tide in such unconventional scenarios.

Then, we tackle the contentious debate over mandatory COVID-19 vaccinations for healthcare workers, with Michael Mulligan weighing in on the balance between personal freedoms and public health mandates. The conversation doesn't stop there; we also dissect a recent court ruling's impact on a man caught in the crossfire of federal payments and provincial deductions. This episode isn't just about the letter of the law; it's about the real-life stories behind these legal battlegrounds and how they affect us all.

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

This week on Legally Speaking with Michael Mulligan:

The BC Court of Appeal, BC Supreme Court, and BC Provincial Court issued a joint release advising that all judges and judicial officers, in all the courts in BC, have received two doses of vaccine for COVID-19. 

The courts further advised that, as of November 22, all court staff and all contractors accessing the secure (non-public) areas of courthouses thought BC will all be required to have received two doses of COVID-19 vaccine. 

Because attendance at court is often not voluntary it is particularly important the judges and court staff be vaccinated to reduce the risk that members of the public will not be infected with COVID-19 when attending court. 

In addition, a judge presiding over a 25-day murder trial decided to make it a requirement that prospective jurors be vaccinated to be eligible to serve to reduce the chance of a mistrial being caused by a COVID-19 outbreak. 

Also, on the show, a new program organized by Pro Bono BC: free family law mediation. Senior family law lawyers, and other family law mediators, are providing free assistance for families of up to 3 people with an annual income of less than $65,000 and for families of 4 or more with an annual income of less than $85,000.

Other pro-bono services, in Victoria, are provided at the Law Center. This program is provided by the University of Victoria and is located at the courthouse. Law students provide a range of services for people who are ineligible for legal aid with supervision from experienced instructors and lawyers in the community. 

Finally, several first nations people who were convicted of criminal contempt for blocking roads to protest the construction of the Trans Mountain Pipeline were denied funding for their conviction appeal. 

The BC Court of Appeal judge hearing the application concluded that the conviction appeal, premised on poorly defined claims that the appellants were following first nations law, had little merit.

Despite evidence that there was funding available from a go-fund-me campaign, the appellants were successful in having counsel appointed to argue their sentence appeal.

The Criminal Code has provisions that require judges to consider sentencing options other than jail, with special consideration for first nations offenders. 

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

This week on Legally Speaking with Michael Mulligan 

The Provincial and Supreme Court in British Columbia recently introduced practice directives requiring lawyers to indicate the proper gender pronoun for themselves, and their clients, before each hearing. 

Lawyers have been directed to indicate if they, and the client, wish to be referred to as he/him/his, she/her/hers or they/them/their.

This was the subject of controversy at the recent BC Law Society annual general meeting where some lawyers were calling for more debate with respect to this direction. 

Of interest, in the BC Supreme Court, judges are referred to as either My Lady or My Lord and the practice direction doesn’t require judges to advise which they prefer. 

In the BC Provincial Court, all judges are referred to as Your Honour. 

Several years ago, some BC Supreme Court Judges attempted to adopt Your Honour but were directed to return to either My Lady or My Lord. 

Also on the show, the provincial government is seeking the civil forfeiture of a $3 million Vancouver penthouse that was being used as a nightclub in violation of COVID-19 rules. 

The owner of the penthouse is alleged to have had hundreds of unmasked people in the penthouse, on multiple occasions.

The police attended the penthouse on multiple occasions and seized things including DJ equipment, a dance pole, and a $5 bill found at the base of the dance pole. 

Unlike in criminal cases, civil forfeiture proceedings only require proof on a balance of probabilities.

If the civil forfeiture proceedings are successful, the province could take the penthouse and things seized from it by the police. 

Similar proceedings are also possible for businesses that are failing to abide by the requirement to check the vaccine status of customers. 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.

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

This week on Legally Speaking with Michael Mulligan:

The mayors of Victoria and Esquimalt, who serve as co-chairs of the Victoria and Esquimalt Police Board, have issued a press release suggesting that to prevent police officers from being assaulted and to reduce criminal activity by mentally ill people, more people should be kept in jail before they have a trial. 

In Canada, people are presumed to be innocent. 

There is also a constitutional right not to be denied reasonable bail without just cause. 

The presumption of innocence would have little meaning if accused people were routinely kept in jail without a trial. 

Despite the presumption of innocence, a judge can require someone to remain in jail before their trial if it’s necessary to ensure they attend court, to preserve public safety, or to ensure confidence in the criminal justice system. 

When someone is released, either the police or a judge can impose conditions on them. These will often include conditions such as reporting to a bail supervisor, not possessing weapons, or not contacting other people. The conditions are intended to address concerns about attending court or to protect public safety. 

In Victoria, there has been an increase in property and other crimes associated with an increased population of homeless people who often suffer from mental illness and or drug addiction. 

There is also a significant unmet need for mental health and addiction treatment services. 

Proactively providing these services, rather than waiting for people to be arrested, and then seeking to have them kept in jail before their trial, would reduce both crime and confrontations with the police.  

Putting someone who is mentally ill into jail for a few months will not cure their underlying mental illness or make the community safer in the long run. They will simply be released, without having received treatment, and the cycle will repeat. 

Also on the show, a BC Court of Appeal decision involving the Snaw-Naw-As First Nation and the Vancouver Island rail line that runs from Nanaimo to Port Alberni is discussed.

In 1907 10.78 acres of the Snaw-Naw-As reserve was taken as a right of way for the rail line and $650 was paid as compensation.

The rail line has fallen into disrepair and has not been operational for 10 years.

The Court of Appeal has given the federal government 18 months to pay for the repair of the rail line and, failing that, the Snaw-Naw-As First Nation will be able to apply for the land to be returned to them because it is no longer being used for the purpose that the right of way permits. 

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

This week on Legally Speaking with Michael Mulligan:

Some people opposed to the requirement to be vaccinated for COVID-19 to attend non-essential businesses such as restaurants and bars have suggested that they have a right to do these things because of the BC Human Rights Code. 

While the BC Human Rights Code does have a provision that precludes discrimination in the provision of service based on various factors including physical or mental disability, this is subject to “bona fide and reasonable justification” for denying service. 

It is also uncertain if a refusal to get vacated would constitute a physical or mental disability. 

More significantly, it’s important to remember that the Human Rights Code is only a piece of provincial legislation. 

In British Columbia, there COVID-19 Related Measures Act became law on July 8, 2020. This act continues ministerial orders that were originally made pursuant to the Emergency Program Act. It also allows for new ministerial orders to be added to address COVID-19.

Section 2 of the COVID-19 Related Measures Act specifies that in the event of a conflict with any other act of regulation, the COVID-19 Related Measures Act, and regulations under the act prevail.

Therefore, if a ministerial order preventing unvaccinated people from attending non-essential businesses was found to conflict with some provision of the Human Rights Code, the ministerial order would prevail. 

It is therefore exceedingly unlikely there will be a successful Human Rights Code claim to permit unvaccinated people into non-essential businesses. 

Also on the show, a judicial review has found a decision of the Cowichan Valley Regional District to refuse permission to build a home to be unreasonable. 

The Cowichan Valley Regional District relied upon the Local Government Act and the Riparian Areas Protect Act to deny approval for a home to be built on Cowichan Lake.  

The judge on the judicial review concluded that while the Riparian Areas Protect Act permitted development within 30 meters of the lake to be restricted if it would cause “harmful alteration, disruption of natural features, functions and conditions that support fish like processes in the riparian assessment area”, that it was unreasonable to use this justification to prohibit any development in that area. 

As a result, the couple wishing to build a new home will be allowed to do so. 

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

This week on Legally Speaking with Michael Mulligan:

Anti-vaccination protesters have been holding up copies of the Canadian Charter of Rights and Freedoms and arguing that it prohibits restrictions on unvaccinated people entering restaurants, bars, gyms, and other locations. 

British Columbia, and several other provinces, are implementing systems to provide digital proof of vaccination against COVID-19 in parallel with restrictions on unvaccinated people attending to a range of non-essential service locations where transmission could occur. 

One of the Charter sections frequently reference by anti-vaccination advocates is section 7, which provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordant with principles of fundamental justice.” 

The legal meaning of this important protection is not so expansive as to prevent anyone from being encouraged or even compelled, to do anything they don’t like. 

The rights and freedoms protected by the Charter have legal meanings that are explained in court decisions considering them. It is necessary to review these decisions to determine how the language in the Charter is likely to be interpreted in future cases. 

In addition, Section 1 of the Charter says the following “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 

It is therefore exceedingly unlikely that the Charter would be interpreted in such a way that would afford unvaccinated people the right to engage in non-essential activity that puts other people at greater risk of infection with COVID-19.

The Charter also doesn’t prohibit laws intended to protect individuals themselves. Examples of these include seatbelt law, helmet laws for bicycles and motorcycles, and laws that prohibit the personal possession of dangerous drugs. 

Also on the show, the BC Court of Appeal has expanded the circumstances in which a marriage annulment can be obtained. 

To obtain an annulment based on a failure to consummate a marriage, it’s necessary to establish that the failure to consummate the marriage was the result of a physical inability or psychological incapacity to do so. 

The case the Court of Appeal dealt with involved a Sikh couple who were married in a civil ceremony prior to live together because doing otherwise would be contrary to their religion. They put off consummating the marriage until they could also have a traditional Gurdwara ceremony, on religious grounds. Before that occurred, the couple separated.

The Court of Appeal concluded that sincerely held religious belief can constitute a “psychological incapacity” to facilitate an annulment. 

Finally, on the show, in response to ongoing COVID-19 challenges, the Provincial Court has now facilitated either the person disputing a Motor Vehicle Act ticket, or the police officer who issued it, applying to appear in court by use of MS Teams, or telephone. 

This change, like some others prompted by COVID-19, will add to general efficiency and will facilitate access to the court at a lower cost. People will be able to dispute tickets without needing to travel to the location they were issued or taking more time away from work. Police, who may be subject to transfer will be able to attend court at a lower cost. 

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

This week on Legally Speaking with Michael Mulligan:

Since the beginning of COVID, civil jury trials have been suspended in British Columbia.

Unlike criminal jury trials, which are constitutionally required as an option for people facing more than 5 years in jail, there is no similar protection for civil jury trials.

While civil jury trials were the norm at the time of confederation, their use has decreased. One of the reasons for this is the cost of conducting a jury trial. The party requesting a civil jury trial needs to pay the costs, which can run into thousands of dollars. Ordinarily, the party who wins at trial would, ultimately, pay the additional costs. 

Recently, in BC, most civil jury trials are requested by ICBC when defending claims. This may have some strategic advantages for ICBC because of how civil jury trials work. Juries cannot be given any instructions with respect to how damages for pain and suffering should be determined. With no guidelines, the amounts awarded can be unusually low, or high. 

Where the amount of very high, this can be appealed to the Court of Appeal. When the amount is very low, this is argued to be the jury just not believing the person was seriously injured. 

In BC, civil juries are comprised of 8 people and, after three hours of deliberation, 6 of the 8 are sufficient to render a verdict. This is because civil cases are decided on a balance of probabilities, and not proof beyond a reasonable doubt.

Some provinces, including Alberta, have restricted civil jury trials to categories of cases where community values may be the most important including malicious prosecution, wrongful imprisonment and claims for breach of promise to marry. 

An example of a breach of promise to marry case, from BC, is discussed on the show. 

In addition to bringing community values to the justice system, allowing jury trials can also be valuable in permitting ordinary people to participate and share their experiences with the community. 

The BC government is accepting submissions with respect to what should be done with civil juries until September 30, 2021. Submissions can be emailed to PLD@gov.bc.ca

A report with respect to civil jury trials has also been prepared. 

Also on the show, the BC Court of Appeal considers how much more money a man who failed to pay income taxes for more than a decade should need to pay before being discharged from bankruptcy. 

Declaring bankruptcy does not ensure that someone will be discharged either quickly, or without needing to pay back more money over many years. In the case discussed, after several years in bankruptcy, the man was ordered to pay an additional $45,000 over five years, at a rate of no less than $750 / month. 

Finally, a case involving a BC employment contract that provided for adjudication in Ontario is discussed. The clause would have made it more expensive and difficult for the BC employee to sue for wrongful dismissal. 

The employee in the case was fired with 30 days of notice, after working for more than a decade as a counsellor. The judge concluded that the clause was unenforceable for several reasons including that it was unconscionable, that there was no consideration provided when the clause was added to the contract, and because it didn’t say that Ontario jurisdiction was exclusive.

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

This week on Legally Speaking with Michael Mulligan:

In British Columbia, the Wills, Estates and Succession Act sets out requirements for a will to be valid. These include a requirement that a will be signed by the will-maker as well as two or more witnesses. 

In a case discussed on the show, a 76-year-old woman was living in a care facility and provided instructions to her lawyer to draft a new will. Unfortunately, the appointment to sign the will was scheduled for March 20, 2020. The appointment was cancelled because the care home the woman was living at prohibited residents from leaving, or visitors from attending, because of COVID. 

Sadly, the woman passed away before the will was signed. She had no children, and her husband had predeceased her. 

In a previous will, from 2014, a large portion of the woman’s estate would have gone to the Kelowna General Hospital Foundation. In accordance with her instructions, the new will that was drafted, but not signed, did not include the Kelowna General Hospital Foundation but, instead, left most of the estate to the woman’s nephew and nice-in-law. 

According to the correspondence with her lawyer, the woman was clear that she did not wish to leave any money to the Kelowna General Hospital Foundation because she had no connection to the organization. She indicated that this had been a suggestion by her late husband. 

The Wills, Estates and Succession Act allows a court to “cure deficiencies” in a will that would otherwise be invalid. One of the things that a judge needs to be satisfied of in order to exercise this authority is that the will must represent fixed and final intentions regarding the disposal of property upon death. 

The Kelowna General Hospital Foundation argued that the unsigned will should not be relied upon because in a note to her lawyer, after reviewing the draft will the woman said, “no charities at this time.”

Despite this, the judge hearing the case concluded that the unsigned will did represent the woman’s fixed and final intentions and found it to be valid even though it hadn’t been signed or witnessed. 

Also on the show, the University of Victoria is resisting a proposed class action seeking refunds of parking pass fees for the period of March 16, 2020, to August 31, 2020. After selling the parking passes, the university closed the campus because of COVID. 

The university was successful in an application to permit it to make an argument to have the claim dismissed, prior to a hearing to determine if the case should be certified as a class action. The practical implication of this is that the student acting as the proposed representative plaintiff could be ordered to pay thousands of dollars in costs if the university is successful. If a case is certified as a class action, the representative plaintiff is no longer at risk of being ordered to pay the costs of the defendant. 

Finally, on the show, an unsuccessful judicial review of a Human Rights Tribunal decision. The case involved an academic advisor who was fired from his job at UBC because he was using gay dating apps to meet people, including students, at the university. UBC took the position that this was a conflict of interest. The academic advisor argued that this was discrimination based on sexual orientation. 

The judge hearing the case found that while the evidence in the case could have supported inferences of discrimination, that this was not sufficient to overturn the decision of the Human Rights Tribunal. To reverse this kind of decision the judge would need to be satisfied that it was patently unreasonable.

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

This week on Legally Speaking with Michael Mulligan:

An increasing number of jurisdictions, including New York, Quebec, France, and Israel are prohibiting people who are not vaccinated for COVID-19 from being in public places where people are in close contact, such as restaurants, bars, concerts, and museums.

In Canada, the federal government has announced that it will be providing electronic vaccine passports to facilitate international travel, as well as provincial restrictions such as those being imposed in Quebec. 

In British Columbia, the Public Health Act provides authority to prohibit people who have not been vaccinated from engaging in activities or entering places such as restaurants. These provisions are found in section 16 of the Public Health Act. 

Other possible restrictions would include not permitting unvaccinated people from attending in-person classes at universities or residing in university student housing. The University of Ottawa has made COVID-19 vaccination mandatory for students, staff, and faculty.

Section 15 of the Public Health Act is also discussed on the show. This section makes it an offence for anyone to “willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard.” 

Also on the show: pepper spray is a prohibited weapon in Canada. This means that simply possessing pepper spray can result in a criminal conviction, even if it’s not used. Because the theoretical maximum penalty for possession of a prohibited weapon is 10 years in jail, someone who is not a Canadian citizen could end up being deported, without a hearing, if convicted of this offence. 

The regulation that makes pepper spray a prohibited weapon described what is prohibited in this way:

1.   Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of 

(a)  tear gas, Mace or other gas; or

(b)  any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.

The BC Court of Appeal has considered this section and concluded that even though something like Mace, which is designed for self-defence, is prohibited, bear repellant, which may be the same substance in a larger bottle, would not be prohibited because it’s not “designed” to injure or immobilize a person. 

Even though bear spray may not be a prohibited weapon, it could still be a weapon and therefore constitute an offence if someone were to carry it in a concealed manner, or for a dangerous purpose. 

A sentencing decision involving pepper spray is also discussed on the show. It involved an altercation between an 86-year-old and a 57-year-old man shopping at Costco in Vancouver. Following an alleged elbow bump in a doorway, the 86-year-old man pepper-sprayed the 57-year-old man. Despite having pepper spray in his eyes, the 57-year-old ran after the 86-year-old and pushed him with both hands from behind. 

The 86-year-old man fell, hit his head, and died. The 57-year-old was convicted by a jury of manslaughter and sentenced to 18 months in jail.

This case may have formed part of the basis for the federal government’s rejection of Alberta’s recent request to legalize pepper spray for self-defence.

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

This week on Legally Speaking with Michael Mulligan:

The former Clerk of the BC Legislative Assembly, Craig James, was successful in having one of the charges he was facing dismissed. 

Mr. James was charged on a six-count direct indictment. 

To be charged by direct indictment, either the Attorney General or Deputy Attorney General need to provide their consent. When this happens, an accused person no longer has the right to elect what kind of trial they wish to have and there can no longer be a preliminary inquiry to determine if there is enough evidence to proceed to trial. 

Five of the charges on the direct indictment alleged specific wrongdoing, such as obtaining a benefit from the purchase and use of a trailer and wood splitter paid for with public funds.  

The first charge, on the direct indictment, alleged that between September 10, 2011, and November 21, 2018, he did “commit breach of trust in connection with the duties of his office by using his position to advance his own personal interests of the public good, contrary to section 122 of the Criminal Code.”

The trial judge agreed that there were several challenges created by this charge.

The charge duplicated the other five charges, without adding anything new. It would have made the trial more complex for the jury and ran afoul of a principle that a charge should generally relate to a single transaction. 

As a result, the trial judge exercised her authority to quash the count and manage the trial in a way that would be fair to Mr. James. 

Also on the show, the BC Court of Appeal has concluded that the Motor Vehicle Act provisions that make it an offence to “hold” an electronic device while driving are not restricted to holding a device in your hands. 

The driver in question had a phone wedged between his leg and the seat.

The Court of Appeal concluded that the ordinary grammatical meaning of the word “hold” and found that it can include “physically grasping, carrying, or supporting an electronic device with any part of one’s body in a position in which the device may be used.”

Finally, on the show, a judge has approved a settlement of a class action against Cathay Pacific Airways Limited as a result of a 2018 data breach that affected 9.4 million passengers worldwide.

Approximately 230,000 passengers were covered by the BC class action. 

As a result of the data breach, names, passport numbers, credit card numbers, and other sensitive data were exposed online. 

When there is a proposed settlement of a class action a judge needs to determine if the settlement would be in the interest of the class members. 

The judge is also required to approve legal fees and an honorarium for the person who served as the representative plaintiff and needed to spend time assisting with the case. 

In the case discussed, a settlement of $1.55 million was approved and the representative plaintiff was provided with an additional $1,500 honorarium.

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

This week on Legally Speaking with Michael Mulligan:

The City of New Westminster cancelled a meeting room rental that had been booked by The Redeemed Church of God for a "Youth Conference". 

The City of New Westminster has a booking policy that “restricts or prohibits user groups if they promote racism, hate, violence, censorship, crime or unethical pursuits.”

Following an email complaint that the Youth Conference would be an anti-LGBTQ event, the City of New Westminster made some online inquiries and determined that a speaker at the event had a large profile on social media and recent Facebook postings expressing anti-LGBTQ views. 

As a result, The City of New Westminster cancelled the room rental. 

The Redeemed Church of God complained about the cancellation and ultimately filed a petition in the BC Supreme Court to, amongst other things, ask that the cancellation be judicially reviewed and reversed. 

The request for judicial review was denied on the basis that the room rental was a contractual arrangement and not subject to judicial review. 

The judge hearing the case did, however, find that the City of New Westminster had breached The Redeemed Church of God’s right to freedom of expression because the city didn’t take sufficient steps to inform itself about the anticipated content of the Youth Conference to permit a balancing of competing rights to be conducted before making the decision to cancel the room booking. 

Also on the show, a decision from the BC Court of Appeal will allow a defamation claim against a former employee of a Vancouver cryptocurrency company to proceed to trial. 

The former employee had previously been successful in having the case dismissed pursuant to the Protection of Public Participation Act. 

This act, which was introduced in 2019, is intended to prevent unmeritorious civil claims from being used to prevent public criticism. 

The Court of Appeal concluded that the judge who dismissed the claim made a mistake in dismissing the claim because, if defamation is proven, damages are presumed to have occurred.

Finally, another Court of Appeal decision dealing with a sentence appeal by a Métis woman who was sentenced to nine months in jail for an assault causing bodily harm conviction is discussed.

The appeal was premised in part on an argument that the sentencing judge had failed to give adequate consideration to the woman’s background, which is expressly required by section 718.2 (e) of the Criminal Code. 

That section requires that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

In this case, the Court of Appeal concluded that that judge was not required to do more than they had, given the absence of information concerning the impact the woman’s Métis heritage had on her difficult background. 

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

Discover the true impact of British Columbia's drug policy changes and the possible re-criminalization of hard drugs in public spaces as we navigate the labyrinthine details of Section 56 of the Controlled Drugs and Substances Act. With the guidance of Michael Mulligan from Mulligan Defence Lawyers, our latest conversation illuminates the gaps between government announcements and the actual legal language, leaving us questioning the intent behind recent amendments. Mulligan also sheds light on the paradoxical enforcement of marijuana possession laws, exploring the nuances of federal versus provincial prosecution and the transportation of legally obtained drugs.

The most recent changes to the BC exemption from drug possession laws exempts adults if:

a. they are within a designated health care clinic;
b. they are unhoused and sheltering in accordance with all applicable laws; or
c. they are within a private residence.

Because option "b" doesn't require a person who is unhoused and sheltering in accordance with all applicable laws to be "within" anything, it may not be possible to convict an unhoused person who is using otherwise illegal drugs anywhere. This is inconsistent with government pronouncements concerning the use of drugs in public places such as schools and parks.

This episode isn't just about policy—it's about the people and principles caught in the crossfire of drug legislation. We scrutinize the province's history with these laws and the ongoing battle against arbitrary enforcement, diving into how current guidelines still fall short of providing clear and consistent application. As we thank Michael Mulligan for his in-depth insights, we set the stage for further exploration of legal intricacies with an eye toward dissecting the complexities that shape our justice system and affect the lives of citizens. Join us for a compelling examination of law, order, and the societal implications in between.


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

This week on Legally Speaking with Michael Mulligan:

A City of Victoria Councillor was caught on video offering money to a tow truck driver and arguing with an RCMP office, in an unsuccessful attempt to dissuade the tow truck driver from removing cars associated with a logging blockade that has been enjoined by a BC Supreme Court injunction. 

This activity is discussed in the context of the reasons for judgment granting the injunction.

In his reasons for judgment, the judge referenced section 423 (1) of the Criminal Code. That section makes it a criminal offence to block or obstruct a highway or to watch or beset a person’s place of work, for the purpose of compelling someone to abstain from doing anything that they have the legal right to do. 

The judge pointed out that an injunction against committing what would already be a criminal offence is possible where the criminal conduct affects the exercise of a private right.

Also on the show, the Justice Centre for Constitutional Freedoms, a right-wing legal advocacy group, was caught using a private detective to conduct surveillance on the Chief Justice of the Court of Queen’s Bench in Manitoba. 

The Justice Centre for Constitutional Freedoms was litigating a case, with the Chief Justice, on behalf of seven Manitoba churches, arguing that their right to worship and assemble was violated by COVID-19 restrictions. 

The Justice Centre’s Litigation Director claimed responsibility for the decision.

For his part, the Chief Justice, who spotted the surveillance, advised that he would continue to hear the case. He surmised that it was an effort to gather evidence about his compliance with COVID health restrictions. 

The surveillance efforts apparently included the judge’s home and cottage.

Finally, on the show, a new government website that provides information concerning the process to pay, or dispute, various kinds of tickets is discussed. 

Tickets can be issued for provincial, federal, and municipal offences and each of these has a different process to pay or dispute it.

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

This week on Legally Speaking with Michael Mulligan:

After accepting $40,000 for expenses, a surrogate mother is asking to be declared the mother of a four-year-old, and obtain access to the child, on the basis that she claims to have become pregnant as a result of an affair with the child’s father, rather than through the use of a home artificial insemination kit. 

For his part, the father has admitted to having an affair with the surrogate mother but alleges that this occurred only after the birth of the child. 

The surrogate mother has presented records of having terminated two pregnancies, prior to becoming pregnant as a surrogate, where she listed the father of the four-year-old as an emergency contact. She claims that these pregnancies were a result of an affair with the father. 

For the first two years of the child’s life, her parents permitted the surrogate mother to spend time with her. This relationship between the parties faltered when the surrogate mother demanded $100,000 and a fixed visitation schedule. 

A trial to determine if the surrogate mother should be listed as a parent of the child, and obtain access to her, is scheduled for later in the year. 

While awaiting trial, the surrogate mother applied for interim access to the child. This application was denied by a judge following an assessment of the best interests of the child. The judge concluded that the child’s best interests were served by stability, pending the outcome of the trial. 

Also on the show, the destruction of churches, a Captain Cook statue, and a totem pole and how these could relate to sections 21 and 718.2 of the Criminal Code. 

Section 21 of the Criminal Code is concerned with parties to an offence. Anyone who does or omits to do anything for the purpose of aiding any person to commit an offence or abets any person in committing an offence is a party to an offence. 

Section 718.2 (a) (i) makes it an aggravating factor on sentencing that an offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor.

Finally, section 96 of the Constitution Act 1867 provides for the federal appointment of Superior Court Judges.

Superior Court judges can only be removed from office by the Governor General on address of the Senate and House of Commons.

This prevents Superior Court Judges from being fired for making decisions the government doesn’t like.

The independence that this provides could be undermined if the government could transfer the jurisdiction of Superior Court judges to different kinds of judges it could fire or otherwise control. 

A recent Supreme Court of Canada decision concluded that, for this reason, the province of Quebec was not permitted to transfer jurisdiction over claims up to $85,000 to Quebec’s provincial court. 

This decision is likely to have implications for British Columbia’s effort to transfer jurisdiction over claims relating to the new ICBC no-fault system to the Civil Resolution Tribunal. Adjudicators who make decisions in the Civil Resolution Tribunal are on short-term government contracts and could be fired, or not have their contracts renewed if the government was unhappy with decisions they were making. 

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

This week on Legally Speaking with Michael Mulligan:

In 1976, when Canada eliminated the death penalty for murder, the compromise was a mandatory life sentence for people convicted of murder. 

One of the circumstances where mandatory life sentences can result in an excessively long period of time in jail is for people who are subject to long periods of domestic abuse who eventually kill their partner. 

Recently, in Alberta, a woman who was seriously abused by her husband for almost thirty years eventually shot him while he was sleeping. The abuse included ordering the wife around with a gun and threatening to kill her if she left the marriage.

Crown Counsel charged the woman with first-degree murder but eventually agreed to accept a guilty plea to manslaughter on the condition that she would agree to an 18-year jail sentence.

Because a conviction for first-degree murder requires a life sentence, with no possibility of parole for 25 years, the woman agreed. 

In some cases, battered women syndrome has been recognized as a basis for self-defence, even where the abusive partner wasn’t a threat at the time of the killing. How this would be viewed by a jury on the facts of a particular case would always be uncertain. 

When there is a guilty plea and agreement between the lawyers involved concerning the sentence to be imposed, a judge is required to impose the sentence unless doing so would bring the administration of justice into disrepute. This is a very high standard and is intended to encourage cases to be resolved by negotiations. 

Following the sentencing, there was public backlash on the basis that the sentence was excessive, given what precipitated the killing. An online petition to reduce the sentence collected almost 24,000 signatures. 

On appeal, a new lawyer acting for the woman is arguing that the petition is evidence that the sentence does bring the administration of justice into disrepute and should be reduced. 

There is no mandatory minimum sentence for manslaughter.

Also on the show, following the resignation of Julie Payette as Governor General, the Chief Justice of the Supreme Court of Canada took over as Administrator, fulfilling the Governor General’s responsibilities. 

Authority for the Chief Justice to take over these responsibilities is derived from the Letters Patent, 1947, issued by King George VI. 

In this capacity, the Chief Justice is giving Royal Assent to bills, and would also be responsible for things such as dissolving parliament for a general election, choosing a Prime Minister to form a government, and reading the Speech from the Throne. 

This second job could become awkward if the Chief Justice was later hearing a challenge to the legislation, he had delivered a Speech from the Throne about and then provided royal assent for. 

 Finally, a prosecution in Hong Kong for violating China’s national security law has demonstrated how the Chinese Communist Party has dissolved a justice system that was previously similar to the one we have in Canada.

The case involves a man charged with sedition and terrorism offences for riding a motorcycle while carrying a flag with a pro-democracy slogan on it. 

The security law allows the government to pick which judges can hear the case, deny the man a jury trial, hold him in jail until his trial, and subject him to a maximum sentence of life in prison if convicted.

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

This week on Legally Speaking with Michael Mulligan:

Budway, a Vancouver marijuana store, has been using a logo similar to the Subway sandwich logo. Budway also had a mascot in the form of a submarine sandwich filled with cannabis leaves, with bloodshot, half-open eyes. 

Subway sued Budway, alleging various breaches of the Trademarks Act. 

One of the issues in the case was whether what Budway was doing amounted to “passing off” This can occur if consumers could be misled into believing that something is being manufactured, sold, or performed by a different company. 

Last year, Toys “R” US sued another Vancouver marijuana store called Herbs “R” US. In that case, while Toys “R” US was successful in proving that their goodwill was being depreciated by Herbs “R” US, they failed to prove that Herbs “R” US was engaged in passing off because even a casual consumer would not think the same company that sold toys was also selling marijuana. 

Subway was successful in their passing off claim because the Subway trademark was related to the sale of things including cookies, muffins, and pastries.

Budway was selling marijuana edibles, including cookies and brownies, and has posted an online video promoting Munchie Monday with 10% off all edibles. 

Subway was awarded $15,000 in damages plus $25,000 in legal costs. 

Also on the show, the Highlands District Community Association was unsuccessful in the BC Court of Appeal challenging the decision of the Mines Inspector to approve a mine in the District of Highlands. 

Unlike other kinds of development, municipalities don’t decide if a mine can be built. That decision is made by the Mines Inspector: a provincial government official. 

The community association argued that the Mines Inspector was obliged to consider the climate change implications of permitting the mine. 

On a judicial review of an administrative decision, judges are not permitted to just make whatever decision they think would be best. Judges can only overturn an administrative decision, such as the one to permit the mine, if they conclude the decision was unreasonable, or if there was no authority to make the decision. 

In this case, the Court of Appeal agreed that climate change was important and found that the Mines Inspector would be permitted to consider it, however, all three judges agreed that the Mines Inspector’s decision was not made unreasonable by his decision not to seek out evidence about how the proposed mine would impact climate change. 

Finally, on the show, a Supreme Court of Canada case involving how privacy interest should be weighed against the principle that courts are to be open and transparent. 

The case involved an application by the estate of a wealthy Toronto couple, who was murdered in 2017, to keep the estate file private. 

The Supreme Court of Canada concluded that the file should not be sealed because ensuring court decisions were open to the public was important and an essential feature of a democracy. It’s important that the public be able to know what’s happening when courts make decisions. 

The Supreme Court of Canada did find that, in limited circumstances, court proceedings could be sealed when allowing access would undermine the dignity of individuals involved by permitting access to private information that was so sensitive that it could be said to strike at the biographical core of the individual.

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

This week on Legally Speaking with Michael Mulligan:

The BC Supreme Court has inherent jurisdiction to control its own process. This includes the authority to find people who breach court orders to be in contempt. The purpose of this is to uphold the rule of law. 

The rule of law requires people to comply with court orders, even if they don’t agree with them.

If people were permitted to decide which laws they wished to comply with, the strongest mob would prevail, and the result would be anarchy. 

There are two different forms of contempt that can apply when a court order is breached: civil contempt, and criminal contempt.

Criminal contempt involves the element of public defiance of a court order with intent, knowledge or recklessness that doing so will undermine the authority of the court. 

Unlike with civil contempt, where the objective is ensuring compliance with the order, a sentence for criminal contempt includes punishment for the behaviour. 

A recent BC Supreme Court case, discussed on the show, clarifies the procedure for criminal contempt proceedings and makes clear that the provincial Attorney General does not have the authority to decide if such prosecution should occur. 

In British Columbia, starting with a contempt proceeding for people who were blocking access to the Everywoman’s Health Centre, in contravention of a court order, a practice of the court “inviting” the Attorney General to undertake prosecutions for criminal contempt developed. 

In the current case, six individuals who were involved in a blockade of the Vancouver Port Authority, contrary to a court order, in furtherance of a dispute over a natural gas pipeline, were arrested. The court hearing the case concluded that the contempt appeared to be criminal in nature and thus invited the Attorney General to conduct the prosecution. 

Rather than doing so, however, the Attorney General took the position that he had the authority to assess the prosecution in the same way as might occur when the police submit a report and recommend criminal prosecution. This kind of assessment involves both a consideration of the strength of the case, and whether prosecution would be in the public interest. 

The Attorney General declined to prosecute the people who had been blocking the port in violation of the court order, citing public interest considerations. 

The court, in the recent decision, has made clear that the Attorney General doesn’t have authority to decide if a criminal contempt prosecution should proceed. The court has control of the process, and if the Attorney General doesn’t accept the invitation to conduct the prosecution, the court may consider other measures, such as appointing a special counsel to present the case. 

Also on the show, a 72-year-old widow ends up with a $166,702.73 bill for removing 324 tonnes of contaminated soil as a result of an underground oil tank leaking. 

After an initial victor at trial, when a judge concluded the cleanup contract was unconscionable, pursuant to the Business Practices and Consumer Protection Act, this finding was overturned on appeal. 

Finally, the Supreme Court of Canada has provided further guidance on when unpaid child support arrears should be reduced. Two takeaways from the case were that a person paying child support, who has a change of financial circumstances, needs to share this information in a timely way and that continuing to pay what is possible, from a reduced income, will demonstrate good faith. 

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

This week on Legally Speaking with Michael Mulligan:

Annaca Kobayashi, a 19-year-old woman from Langford, falsely reported to the police that a young man she knows had threatened her with a knife and sexually assaulted her. 

A police investigation, including a review of a video recording where she claimed to have been threatened with the knife, revealed her story to be false. 

Only after a third police interview did Ms. Kobayashi, who had a boyfriend at the time, admit that she made the story up. 

The young man who was falsely accused spoke to the police and advised that Ms. Kobayashi and he had consensual sex. 

Ms. Kobayashi was charged with public mischief for making the false report to the police. She eventually entered a guilty plea and received a conditional discharge with 24 months of probation and 50 hours of community work service. 

A conditional discharge means that, if a period of probation is successfully completed, the person will be deemed not to have been convicted of a criminal offence and, after a period of time, the record of the conviction will automatically be removed from the CPIC computer system. 

The test for a conditional discharge is whether avoiding a criminal conviction would be both in the best interests of the offender and not contrary to the public interest. 

A conviction for threatening someone with a knife and sexually assaulting them would result in many years in jail. 

Also on the show, the BC Court of Appeal overturned a conviction for sexual interference and sexual assault as a result of the trial judge reversing the burden of proof. 

The case involved a complainant testifying that she was sexually assaulted, and the accused testifying that he did not do it. 

The judge relied on the fact that the accused could not explain why the complainant  would lie in order to convict him. 

The accused person, in a criminal case, is not required to explain why a complainant  would lie. To require this is to reverse the burden of proof. 

As a result, a new trial has been ordered. 

Finally, the BC Court of Appeal has allowed an 84-year-old man to remain in a trailer park he had been living at for more than a decade.

The trailer park was owned by the man’s brother. The brother had an agreement with the man that he could live in the trailer park for the rest of his life in exchange for providing work and services. 

When the brother died, his executors attempted to evict the man, unless is began paying $350 per month is pad rent. 

The Court of Appeal referenced the Manufactured Home Park Tenancy Act which provides for tenancy relationships to be made orally and defines rent broadly to include not just money but “value or a right given or agreed to be given” in return for the right of possession. 

As a result, the Court of Appeal referred the case to the director of the Manufactured Home Park Tenancy Act to determine if a tenancy exists.

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

This week on Legally Speaking with Michael Mulligan:

Duress is a defence, sometimes referred to as an excuse, for the commission of a criminal offence. 

The rationale for the defence is the idea of moral involuntariness. 

These are the requirements for the defence:

1. There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party. 
2. The accused must reasonably believe that the threat will be carried out. 
3. There is no safe avenue of escape. This element is evaluated on a modified objective standard. 
4. A close temporal connection between the threat and the harm threatened. 
5. Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard. 
6. The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy, or association. 

Once the accused person demonstrates that there is an “air of reality” with respect to each element of the defence, the Crown would need to prove that the defence does not apply. 

In the case discussed, the accused, and his brother, were on the same unit in jail as a man known as Big Newf. 

Big Newf demanded that the accused smuggle drugs into the jail. If the accused didn’t do this Big Newf, who had a reputation for violence, would harm the accused, or his brother. 

Big Newf arranged for a surety to help the accused get bail and then the person acting as a surety had the accused swallow and insert drug packages into his rectum. The accused was then required to turn himself into the police to get readmitted to jail. 

The accused did not think he had any safe avenue of escape because Big Newf, and his associates, had access to his brother who was still in jail. 

The trial judge, and the Ontario Court of Appeal, both concluded that the Crown had not proven that the defence of duress did not apply.

Also on the show, the BC Court of Appeal upholds an 11-year jail sentence, for a man with no previous record, who plead guilty to trafficking in carfentanil. 

The man had been selling drugs online and shipping the drugs via Canada Post. Online advertising for the drugs included statements such as “one of the premium Fentanyl vendors in Western Canada.”, “carfentanil … [w]hen used responsibly … is proven to be very safe”, and “we have the best stealth period”.

Finally, on the show, a BC Court of Appeal decision increasing the wrongful dismissal award in favour of an articling student who was fired by her principal is discussed. 

The court described the lawyer’s conduct as “high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinarily standards of decent behaviour.” 

The fired student was awarded $118,934 in general damages, $25,000 in punitive damages, $50,000 in aggravated damages, and $10 for breaching an articling agreement.

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

This week on Legally Speaking with Michael Mulligan:

Miscellaneous Statutes Amendment Acts have, perhaps, the least exciting names imaginable. 

Sometimes, however, these acts bundle together legal changes that can be significant. 

If passes in BC, a recently introduced Miscellaneous Statutes Amendment Act will make changes that will have meaningful consequences for people. 

On the show, two of these changes are discussed. 

One of the proposed changes will require ICBC to withhold licence and insurance renewals for people with unpaid COVID related fines. 

A similar approach is used in an attempt to collect other fines, and debts including child support payments. 

The challenges with this approach include both the collections costs being transferred by the government to what is supposed to be an insurance company, and the fact that some people will respond by driving without insurance. 

An alternative approach is discussed on the show: deducting unpaid COVID related fines from COVID relieve cheques that would otherwise be sent to people. This approach would work more reliably, save money, and avoid unintended consequences. Mailing people with unpaid fines $500 or $1,000 cheques and then trying to compel payment by withholding insurance doesn’t make much sense. 

In addition, the Miscellaneous Statutes Amendment Act further expands the definition of “family violence” in the BC Family Law Act. 

This term has already been defined in a way that captures both actual violence, as well as things such as damage to property or the unreasonable restriction financial or personal autonomy. By defining a term, which has an ordinary English meaning, to include things that are not violence, needless litigation as resulted from people objecting to being labeled in this way. 

Ensuing litigation has resulted in findings of “family violence” for things including the sending of an email threatening to close a dental practice, a father saying that a mother’s actions were “contrary to scripture and sinful” and a mother interfering with a father’s access to children.  

Also on the show, the leak of COVID-19 information that the provincial government had been keeping secret is also discussed in the context of a decision to grant vaccine priority to judges and Crown Counsel in Vancouver without explanation for failing to do the same for other people working in the justice system including sheriffs, court clerks, defence counsel, and registry staff. 

Based on a review of the COVID-19 report that was leaked, it would appear that the government decided to release information selectively in order to encourage safer behavior. Information concerning the specific location of outbreaks and specific data concerning vaccine distribution was not released to the public. 

The trouble with this approach is that it undermines confidence in public health information and may cause long term harm by reducing the number or people will to be vaccinated. 

 In a democracy, there should be a very high threshold for keeping public information secret. 

This week on Legally Speaking with Michael Mulligan:

Many criminal cases are resolved by way of joint sentencing submissions by Crown and defence counsel. 

This means that the accused person is agreeing to plead guilty and both lawyers have agreed on what the appropriate sentence should be. 

The Supreme Court of Canada has held that, in these circumstances, judges are not permitted to impose a sentence different than what is proposed unless the proposed sentence was “so unhinged from the circumstances of the offence and the offender that its acceptance would leave reasonable and informed persons … to believe that the proper functioning of the justice system had broken down.” A high threshold indeed.

The BC Court of Appeal recently allowed an appeal from the decision of a judge who refused to implement a joint submission.

One of the reasons that judges are not simply permitted to substitute their judgment for that of the Crown and defence is that the lawyers involved often had a much better understanding of the circumstance and issues which underly a proposed resolution. 

Because of the importance of an open and transparent court process, judges are not ordinarily provided with all of the evidence, reports, and witness statements that counsel would have access to. Judges need to make their decisions based on evidence and submission presented in open court so that it’s clear what is being considered. 

In addition, if judges were permitted to routinely depart from joint submission, fewer cases would resolve, and more unnecessary trials would result. 

Where a judge concludes that the high threshold for not imposing a joint submission has been met, they are required to provide “clear and cogent reasons” for doing so. Failing that, or if the reasons are not sufficient, the Court of Appeal may, as in the case discussed, allow a sentence appeal and impose the sentence that was agreed to. 

Also on the show, a new Supreme Court of Canada case is discussed concerning prosecutorial immunity. 

This case involved Toronto police officers suing Crown Counsel for how they conducted a prosecution. 

The original case involved the arrest of two men for armed robbery and unlawful confinement. The men who were arrested testified that police officers had strip-searched and beaten them into providing confessions. One of the men had a broken rib. 

The police officers involved alleged that Crown Counsel had mishandled the case because they believed the evidence of the accused men and did not call the police officers to testify at trial. 

The Supreme Court of Canada concluded that the police were not able to sue Crown Counsel for decisions such as this because of prosecutorial immunity which is intended to prevent civil claims like this so that Crown Counsel aren’t concerned about the possibility of civil liability when making decisions about a case. 

Finally, on the show, a case involving a defamation claim arising from inquiries made in the course of an ICBC claim is discussed. 

The claim was dismissed because of the concept of “absolute privilege” which precludes defamation claims for statements made in court, in pleadings, or in the course of duties relating to pursuing a client’s interest during the conduct of a 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 BC Government has proposed police roadblocks to enforce travel restrictions between health authorities, in order to reduce the spread of COVID-19.

Because there are significantly different rates of infection in different parts of the province, this objective is understandable. 

Unfortunately, contrary to the premier’s assertion that police will be able to conduct roadblocks of this kind without any new authority, that is not the case. 

Police have the authority to stop vehicles for motor vehicle-related purposes, such as to ensure the sobriety of the driver, that the driver has a valid licence, and the vehicle is properly insured and mechanically sound. 

Police do not have the authority to stop vehicles for other kinds of investigations unless, at a minimum, they already have reasonable grounds to suspect that the occupants are connected to particular criminal activity. The police would not be permitted to, for example, pull cars over at random, or set up a roadblock, to search for drugs or stolen property.

In addition, police are independent of government: they are not obliged to set up roadblocks at the direction of the government. Some police representatives have already made clear that they are not prepared to participate in the proposed scheme. 

Finally, the province has not provided vaccines to police officers so asking them to conduct roadblocks of the type suggested would put both the police officers and people being stopped, at risk. 

There is, however,  a safe and lawful means to accomplish the government’s objective. 

Section 23 of the Public Health Act permits health officers to stop a person or vehicle for purposes including determining if “a health hazard exists or likely exists in or on the vehicle or place, or in relation to the activities of the person…”. The government could designate nurses, or other medical professionals, as health officers pursuant to section 71 of the Public Health Act.

Unlike police, the designated medical practitioners would have the legal authority to conduct checks or cars at ferry terminals or elsewhere. They would also be vaccinated. 

This approach would also address many of the concerns expressed by the BC Civil Liberties Association, The BC Assembly of First Nations, the Criminal Defence Advocacy Society, and others relating to the use of police checkpoints. 

Also on the show, a COVID-denier, who attended a Flat Earth conference in South Carolina, had his claim against the Premier, AG, and others, dismissed after he was arrested and held in jail for 4 days following three alleged breaches of the Quarantine Act, upon his return to BC. 

In dismissing the man’s claim, the judge hearing the case said that he was not without sympathy, because the man learned the hard way that laws do not work on an “opt-in” basis. 

Finally, on the show, Small Claims rules for civil claims between $5,001 and $35,000, have been amended as a result of COVID-19 to permit various steps in the process to be conducted by phone or video connection. 

Other steps, such as a trial, would presumptively be conducted in person. 

On application, a judge has the authority to depart from the default online or in-person option.

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

Prepare to be engrossed as Michael Mulligan from Mulligan Defence Lawyers dissects the intricate case of Ms. Davidson, deputy leader of the federal Green Party, whose criminal contempt conviction has stirred debate. The fine line between staunch activism and legal adherence is put to the test in our discussion of her bail pending appeal. We'll explore whether Davidson's bold pre-sentencing declarations will hold true as we scrutinize the nuanced balance of upholding one's convictions vs the rule of law. This episode promises a riveting look at the intersection of law and politics, with implications that reach well beyond a single court decision.

Also, on the show, a security guard is found guilty of manslaughter after an intruder he apprehended died.

Finally, venture with us on a historic expedition through the annals of property law. We unravel a legal saga rooted in the 1920s over land ownership, escheatment, and the labyrinth of legal processes that ensue when land reverts to the Crown. The tale of two lots near Nelson, entangled in a legal odyssey involving a company's dissolution and a forgotten land transfer, provides a stunning backdrop for our analysis. As we dissect the recent Court of Appeal decision, we examine the broader consequences for land rights and the evolution of property law that continue to resonate today. Join us for an engaging journey that is as much about legal facts as it is about the stories of those who navigate them.

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

This week on Legally Speaking with Michael Mulligan:

The USA and Canada have a treaty that provides for mutual legal assistance in the investigation of criminal matters. 

Pursuant to this treaty, the Minister of Justice of Canada, at the request of the USA, applied for and obtained a search warrant for two Vancouver companies being investigated for sending fraudulent mass-mailed solicitations that were believed to be financially exploiting vulnerable people. 

Applications for search warrants occur without the defendant being present or having an opportunity to respond. Accordingly, after a search warrant is executed, the party being searched can request a review to determine if the warrant should have been issued. This kind of review is referred to as a Garafoli Review.  Garafoli is the name of a case setting out how these reviews should take place. 

A judge conducting a Garafoli Review is not substituting their view for that of the judge who authorized the search. Instead, taking into account further evidence, the existence of fraud, non-disclosure, or misleading information in the search warrant application, the reviewing judge needs to determine if a judge could properly have authorized the search in the first place. 

In the case discussed, the reviewing judge concluded that the search warrant was properly authorized. 

Also on the show, a BC Provincial Court judge has concluded that the court did not lose jurisdiction over thousands of accused people when their cases were mass adjourned at the start of the COVID-19 pandemic. 

The BC Provincial Court is a statutory court: it derives all of its authority from legislation that authorizes the court to do various things. This is distinct from the BC Supreme Court, which is a court of inherent jurisdiction. It has authority that is not derived from legislation. 

In the ordinary course of a criminal case, there needs to be some authority to compel an accused person to attend court. Absent this, the accused person could simply not show up. 

The initial obligation to attend court could take a number of forms including a summons, undertaking, or warrant. Once an accused person attends court, a judge could adjourn their case to a different date. 

The mass adjournments due to COVID-19 involved the Chief Judge of the Provincial Court issuing a Notice to the Profession (NP 19), directing that all out of custody criminal cases, for a prescribed time period, had been adjourned. 

Once the court had plexiglass installed, and various protocols put in place to deal with matters remotely where possible, cases recommenced. 

The judge reviewing what occurred concluded that jurisdiction was not lost when the cases were adjourned. He concluded that the Criminal Code provisions that permit the court to make procedural rules permitted the adjournments. In addition, he concluded that there was jurisdiction to adjourn the cases in this way because it was a part of the court's authority to control its own process. 

Finally, on the show, an apartment building in Prince Rupert was acquitted of a bylaw offence for having an overflowing and unsightly garbage bin. 

The bylaw in question specified that “No owner or occupier of real property shall allow that property to become or remain unsightly.” 

Because the unsightly garbage bin was in a back alley, there was no evidence that it was on the property owned or occupied by the apartment building. 

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

This week on Legally Speaking with Michael Mulligan:

In August of 2015, Mr. Upton was attempting to straighten a bent metal plate from the steering mechanism of his 1955 Chevrolet Bel Air. He had removed it from the vehicle, placed it on a concrete step in his backyard, and was hitting it with a sledgehammer.

Mr. Sexsmith was visiting Mr. Upton and watching his car repair efforts.

Unfortunately, on the last occasion Mr. Upton struck the metal plate with the sledgehammer, the plate flew into the air and struck Mr. Sexsmith in the face causing significant injuries to his eye and face.

Mr. Sexsmith was a professional hockey goalie. In 2007 he was drafted by the San Jose Sharks.

The injuries Mr. Sexsmith suffered ended his hockey career.

Mr. Upton had a $1 million homeowners insurance policy from Wawanesa Mutual Insurance Company. This policy excluded claims arising from the “use or operation” of “any motorized vehicle”.

Mr. Upton also had $5 million in insurance on the 1955 Chevrolet Bel Air from ICBC. This policy does not cover any claim that is not a result of the “use or operation” of the Bel Air.

In addition to the duty to indemnify an insured for a covered loss, an insurance company has a duty to defend a claim. This required the insurance company to pay for a lawyer to defend the claim.

ICBC did not want to share the cost of defending the claim. They alleged that repairing the bent metal plate was not the “use or operation” of the car.

The duty to defend a claim is quite broad and is triggered when there is a possibility that the allegations could result in a loss that would be covered by a policy. As s result, the judge hearing the case concluded that ICBC did need to pay half the cost of defending the claim.

There are numerous cases that have concluded various other efforts to repair vehicles are included in the “use or operation” of a vehicle as long as the plan was to repair the vehicle so it could be driven again.

Also on the show, a case involving a man driving a courtesy car from the US to Canada, with 13 kg of heroin in the trunk of the car, is discussed.

In order to be convicted of importing or possessing drugs for the purpose of trafficking, the Crown must prove that the person knew they had the drugs.

In this case, none of the fingerprints on the drug packaging matched the man driving the car, and there was no drug residue on the gloves the man had with him.

The man driving the car testified that he did not know the drugs were in the trunk and, while the judge didn’t necessarily believe the man, he was unable to conclude that he wasn’t telling the truth and so found him not guilty.

Finally, on the show, a case involving a Chinese telephone scam is discussed.

The fraudsters were able to persuade a retired home care worker to send her life savings of $90,000 to a Chinese bank, via a third party, and through a small wire transfer company.

The funds were initially deposited into an account at CIBC. CIBC then provided a bank draft payable to the small wire transfer company.

Upon being presented with the bank draft the wire transfer company sent funds to the bank in China.

Before the bank draft had cleared CIBC became suspicious of the transaction and froze the money in the account.

Both the small wire transfer company and the retired home care worker wanted the $90,000 in the CIBC bank account.

Ultimately, the judge ordered that the funds be returned to the retired home care worker.

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

This week on Legally Speaking with Michael Mulligan:

Land title fraud can result in the loss of your home.  Efforts to fraudulently impersonate property owners have increased along with the use of remote transactions. 

With property, other than real estate, if someone steals something and then sells it to an innocent third party, the original owner of the property stills owns it. The legal concept is the namo dat rule. The thief doesn’t own the stolen item and so can’t sell what they don’t own. 

If the stolen property is located, it would be returned to the original owner, and the innocent third party purchaser would need to locate and sue the thief to get their money back.

In British Columbia, the rules are different with respect to real estate. 

Real estate is treated differently to permit greater certainty of ownership and in order to make transactions easier.

If you applied the namo dat rule to real estate, a purchaser would need to be concerned about all of the previous transactions involving the property to determine if the person selling it was actually the legal owner and able to transfer the property to them. This could involve attempting to verify many previous transactions because if any of them was improper, the current “owner” might not own anything at all. 

In BC, we have a Torrens system for land titles. This involves the concept of indefeasible title. If someone is the registered owner of real property, they own it and this can’t be revoked or made void, absent very limited circumstances. 

If, however, a fraudster is able to impersonate a property owner and is successful in having a property sold to an innocent third party, the new purchaser becomes the owner. In this circumstance, the original owner, who was impersonated, would be compensated from a special fund. They would not, however, get their property back. 

Over the past ten years, there have been two people who were compensated as a result of their property being stolen in this way. 

Also discussed on the show is a recent case involving a BC woman making false claims on Facebook, and in instant messages, that another woman had engaged in child sexual abuse.

In order to be liable for defamation, the plaintiff needs to establish that:

1)    The impugned words were defamatory in that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

2)    That the words referred to the plaintiff; and

3)    That the words were published; i.e. communicated to at least one person other than the plaintiff.

In the case discussed, all three of these requirements were met. The wrongly accused woman was awarded $20,000 in general damages, and an additional $10,000 in aggravated damages because the woman posting the false accusations continued to do so after receiving a cease-and-desist letter from the plaintiff’s lawyer. 

The judge hearing the case also issued a permanent injunction to stop posting the false claims. 

Finally, on the show, a high-conflict family court case results in a 12-day trial over various issues and a $34,481 costs award against an ex-wife. The ex-wife then declares bankruptcy, which would avoid her needing to pay the costs award. 

The ex-husband was ordered to pay retroactive child support, in the amount of $19,475. 

The ex-husband tried, unsuccessfully, to have the judge apportion all of the costs award to the issue of child support, because child support, and costs awards relating to it, are not eliminated by bankruptcy. 

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