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.  

Legally Speaking with Michael Mulligan

Issues in the criminal contempt prosecutions from Fairy Creek and a default judgment for defamation

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. 

UN Rights of Indigenous People and child protection legislation and the Crown Counsel Association contract

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. 

Provincial Court report, SCC and a strip search, and a 6 year fentanyl sentence

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. 

Teal Cedar Products Ltd. vs the Rainforest Flying Squad in the BCCA and a strata dispute over a shared BMW

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

Mental health and the criminal law, a PLTC judicial review, and a police officer dismissal upheld on appeal

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.  

Arrests for blocking a highway and an appeal due to a failure to disclose evidence

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. 

Settlement exception for family mediation, award for dismissal of Caucasian employees and ex-pizza partner competition

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. 

Child vaccine legal disputes and gross negligence for not vaccinating all teachers

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. 

Mischief vs. Public Mischief, Counselling an offence, and the Parity Principle

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.

Bill C-22 minimum sentences, Esquimalt Police civil claim, and the secrecy of jury deliberations

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. 

Bookkeeper fraud sentence appeal, MS Teams court decorum, and the General Anti-Avoidance Rule

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. 

Highway obstruction is a criminal offence, Ministerial Order for gas vs. economics, and the last cannabis sentence

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. 

BC Emergency Program Act, a damaged couch, and the SCC on sentencing ranges

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.   

Saanich Police Officer fired for fake drug recognition recertifications, no SCC for Highlands mine and a firing during COVID

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.

Who is in jail in BC and what does it cost? Should a custody order from Pakistan be enforced in BC?

Legal news and issues with lawyer Michael Mulligan on CFAX 1070 in Victoria, British Columbia, Canada.

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Legally Speaking with Michael Mulligan

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