Legally Speaking with Michael Mulligan: Recent Episodes
Michael Mulligan
Legal news and issues with lawyer Michael Mulligan on CFAX 1070 in Victoria, British Columbia, Canada.
A government can detain someone for mental health reasons, but can it also force treatment without first asking a harder question: are they actually capable of deciding for themselves? We walk through a major British Columbia decision on involuntary treatment under the Mental Health Act, where the court finds a section 7 Charter breach because director-approved treatment can override a patient’s wishes without a meaningful capacity process. Along the way, we unpack why consent, bodily autonomy, and dignity are not optional extras in Canadian health law, even when the patient is involuntarily hospitalized.
We also dig into what changed midstream, including the repeal of “deemed consent”, and why that still didn’t fix the underlying problem. BC stands out compared with other provinces that use capacity assessments, advance directives, representation agreements, or substitute decision-makers to navigate informed consent and psychiatric care. The court suspends its ruling for six months, putting pressure on the province to amend the legislation or consider an appeal, while leaving the policy design to elected lawmakers.
Then we pivot to a Supreme Court of Canada ruling with national impact: Parliament cannot legislatively prevent judicial review of administrative decisions. Using the WE Charity conflict of interest complaint and Democracy Watch’s challenge as the backdrop, we explain how the rule of law and section 96 of the Constitution Act protect the superior courts’ core role in reviewing whether government power is exercised lawfully and reasonably. If you care about mental health rights, government accountability, and the real meaning of the rule of law in Canada, this one connects the dots. Subscribe, share the episode, and leave a review, then tell us: where should courts draw the line on state power?
Follow this link for a transcript of the show and links to the cases discssed.
One word can change everything when it comes from a legal regulator. We dig into the BC Law Society’s mandatory Indigenous education course, the controversy over how it described the Kamloops Residential School site, and why some lawyers pushed to add a qualifier like “potential” when claims have not been independently confirmed. When that request was publicly framed as racist and then amplified through the Law Society’s own channels, the dispute escalated into a defamation lawsuit and ended with a settlement that included revised course wording, removed material, and a carefully worded public statement.
From there, we zoom out to the bigger Canadian legal questions sitting behind the headlines: how professional regulators should communicate, how accusations of racism should be made responsibly, and what it would mean if governments moved toward criminalizing “residential school denialism” as hate speech. It’s a conversation about truth claims, harm, and the risks of turning contested facts into mandatory orthodoxy.
We also break down a BC Adoption Act decision that shows how consent really works when a step-parent adoption is opposed by a biological parent. A nine-year-old’s views, a father’s substance-use struggles, and the court’s “best interests of the child” analysis collide in a ruling that legally severs one relationship while still urging space for connection when it’s safe, and the child wants it. If you care about Canadian law, family law, defamation, and freedom of expression, subscribe, share the episode, and leave a review with your take on where the line should be.
Follow this link for a transcript of the show and links to the cases discussed.
Bail has become the go-to explanation for everything people hate about crime and disorder, but the law is more stubborn than the politics. We sit down with Michael Mulligan to sort out what Bill C-14 actually does, what it cannot do because of the Charter, and why the presumption of innocence and section 11(e) still drive the core rules of judicial interim release. If you have ever wondered why “just hold them until trial” is not a simple switch, this conversation puts real legal guardrails around the debate.
We also talk about the part that rarely makes headlines: the system’s capacity. When courts are overloaded and under-resourced, cases spill over, trials get adjourned, and everyone pays the price in time and public confidence. We explore the Supreme Court’s principle of restraint, why bail conditions must be tied to specific risks, and why legislative “reminders” may sound tough while changing little on the ground.
Then we pivot to two practical cases. First, a mistrial application after a witness under cross-examination violates a common order not to discuss evidence. We unpack the “fair trial” north star and the remedies a judge can use short of scrapping the trial. Second, we dig into privacy law and modern surveillance: police obtain a neighbour’s security video of an accused person’s front door without a warrant, and the court finds no reasonable expectation of privacy, raising big questions for anyone living around cameras.
If this helped you think more clearly about Canadian bail law, mistrials, and privacy rights, subscribe, share the episode, and leave us a review so more people can find the show. What part of this debate do you think is most misunderstood?
Follow this link for a transcript of the show and links to the cases discussed.
A campus sticker dispute, a GST mistake that snowballs for years, and a pre-COVID work-from-home fight all end up in the BC Court of Appeal, and the common thread is proof. We walk through a defamation claim tied to “I Heart Hamas” stickers attributed to a UBC social justice group and explain the first hurdle many people miss: whether the plaintiff is even a legal entity that can sue. When the “group” is an unincorporated association, the case shifts to an individual trying to show the publication points to him personally, and we break down how courts analyze identification in Canadian defamation law.
Next, we dig into a small business GST problem caused by bad bookkeeping advice. We clarify the GST small supplier threshold, why you can still owe uncollected GST, and when voluntary registration can help through input tax credits. The case also highlights practical warning signs: invoices that exaggerate qualifications, vague LinkedIn claims, and the “pay me cash with no invoice” request that should make any business owner stop and reassess.
Finally, we look at a human rights and employment accommodation claim involving a TELUS worker who wanted to work from home based on vague symptoms and a thin doctor’s note. The court’s message is blunt and useful: an employer’s duty to accommodate is judged on the medical information available at the time, not on a diagnosis that appears later. If you found this helpful, subscribe, share the episode, and leave a review so more listeners can find these real-world legal takeaways.
Follow this link for a transcript of the show and links to the cases discussed.
A province says a police misconduct record is sealed and destroyed. The Supreme Court of Canada says a fair trial can’t work that way. We walk through a major ruling on criminal disclosure and why it matters when the credibility of an investigating officer is on the line, especially where past discipline involves dishonesty or reliability. From Stinchcombe to O’Connor to McNeil, we connect the dots between first-party disclosure, third-party records, and the real-world question defence lawyers face: what information must the Crown provide so an accused person can properly challenge the case against them?
Then we pivot to the financial wreckage left behind by a long-running Ponzi scheme. When the operator is bankrupt and the money is gone, the bankruptcy trustee has one practical tool left: clawbacks. We explain “net winners” versus “net losers”, why payouts often aren’t profits at all but other victims’ funds, and how concepts like fraudulent preference and fraudulent conveyance can unwind transactions to spread losses more fairly. If you’ve ever wondered what happens after a fraud collapses, this is the legal playbook.
We close with a sharp lesson on conditional sentence orders (house arrest) and breach allegations. A late-night compliance check leads to a simple defence, “I slept through it”, and a deeper legal issue: can the Crown jail someone for the rest of their sentence without proving intention? The BC Provincial Court says mens rea still matters, and we break down what that means for curfews, door-answering conditions, and proof.
If you find this kind of Canadian law breakdown useful, subscribe, share the episode with a friend, and leave a review so more listeners can find us.
Follow this link for a transcript of the show and links to the cases discussed.
A court ruling can change more than a headline, it can change how safe you feel about the basics: owning property and trusting the people who handle your money. We walk through a remarkable British Columbia Aboriginal title dispute connected to lands in Richmond and the Cowichan Tribes, where a private property owner tried to jump back into years of litigation after the trial decision raised alarms about fee simple ownership. When a judgment hints that Aboriginal title could affect private land, the stakes are not abstract. Think mortgages, resale value, and whether ownership still means you can sell without someone else’s consent.
From there, we step back and ask a bigger question about the role of courts in Canada. When legal interpretations create sweeping policy consequences, what does judicial modesty or judicial restraint look like in practice? We talk about why public confidence matters and why sudden shifts can create uncertainty that spreads far beyond a single case.
Then we pivot to employment law and personal finance with a wrongful dismissal fight involving an Investors Group advisor. We break down the difference between an employee, an independent contractor, and a dependent contractor, and why that classification decides whether notice is owed. We also unpack after acquired cause and how misconduct discovered after a firing can still justify termination. Along the way, we connect the case to a hard truth about financial advice in Canada: if you are not paying directly, commissions on mutual funds and investment products may be shaping the recommendation.
Subscribe for more clear, practical legal analysis, share this episode with a friend who owns property or invests for retirement, and leave a review with the question you want us to tackle next.
Follow this link for a transcript of the show and links to the cases discussed.
A province suing over opioids is one thing. A province passing a statute that makes it easier for itself to sue, then launching a sweeping class action on that foundation, is something else entirely. We walk through British Columbia’s opioid litigation strategy, the allegations about marketing and addiction risk, and how the Opioid Damages and Health Care Cost Recovery Act reshapes the usual civil rules around limitation periods, damages, and liability. If you’ve ever wondered what “government cost recovery” really looks like in court, this is the clearest real-time example.
We also unpack the Court of Appeal’s decision on class action certification, because that early procedural stage often decides the real leverage in mass litigation. We talk about what certification is actually meant to test, why appellate courts don’t treat appeals as a second kick at the can, and what it means when dozens of lawyers show up to fight over whether a case can proceed as a class action at all. Along the way, we flag a practical concern that’s easy to miss: cross-border enforceability and why a judgment that looks unfair can trigger resistance in other jurisdictions.
Then we switch gears to a BC civil forfeiture case involving a 2015 Dodge Challenger and allegations of dangerous driving. The fight isn’t just about speeding facts; it’s about whether the province can sell property before trial to avoid storage costs, and what “instrument of unlawful activity” means when no criminal conviction is required. If civil forfeiture, due process, and proportionality have ever seemed abstract, this one makes it concrete. Subscribe, share the episode with a friend, and leave a review telling us which issue matters more to you: opioid accountability or civil forfeiture powers.
Follow this link for a transcript of the show and links to the cases discussed.
A city changes a bylaw, two parks get added to a no-camping list, and suddenly the real question isn’t “is this fair?” but “who has the legal power to decide?” We walk through a fresh BC Supreme Court decision on Victoria’s park camping restrictions, including why the court treats the amendment as legislation, not a mere policy tweak. That single classification reshapes the whole case: instead of weighing reasonableness, the court asks whether the City has authority under the Community Charter to pass the bylaw at all and answers yes.
We also dig into the Charter section 7 backdrop from the 2009 Adams decision, where a blanket prohibition can become unconstitutional if there aren’t enough shelter spaces and people are forced to sleep outside. The ruling doesn’t end the broader homelessness and public space debate, but it clarifies what needs to be proven and by whom. A “free-floating” challenge without an affected person is a tough fit, while a future case with evidence of no realistic place to shelter could bring the constitutional issue back in a concrete way.
Then we pivot to two fast, practical legal lessons. First, the BC Court of Appeal orders a new trial in a sexual assault case after the trial judge relied on prior consistent statements, a common credibility trap where repetition gets mistaken for proof. Finally, the Supreme Court of Canada interprets Charter section 16(2) on New Brunswick’s official languages and holds that appointing a unilingual lieutenant governor breaches the Charter, with implications for how we think about bilingualism and constitutional offices.
If you found this useful, subscribe, share the episode with a friend, and leave us a review. What part of these rulings should Canadians be paying more attention to?
Follow this link for a transcript of the show and links to the cases discussed.
A public servant gives three decades to the province, then gets fired without cause on the very day a government is about to fall. The BC Supreme Court doesn’t just disagree with how it was handled, it finds the termination was politically motivated and meant to turn a non-partisan employee into a convenient scapegoat. We talk through what that finding really means in wrongful dismissal law, why the court awards significant punitive damages, and how the decision sends a clear warning that public servants are not political props.
We also dig into the details that should make any listener who pays taxes pay attention: severance that appears to be legally owed gets withheld for months while pressure is applied to sign away the right to sue. Then we step back and ask the uncomfortable question about accountability, because the defendant isn’t a political party, it’s the Crown in right of British Columbia, meaning the costs and damages come out of the public purse. We also examine why a current government might still choose to deny improper motive and defend the case all the way through a long trial.
From there, we shift to estate law in British Columbia and a fascinating WESA section 58 “curative provision” case about wills. A couple plans mirror wills with a lawyer, but the woman dies before signing and the only pre-death draft carries the partner’s name, while a corrected version is created after death. We explain what counts as a reliable “record” of testamentary intentions, why judges can cure some defects but cannot validate a will based only on what people say happened, and what this means for anyone who has been putting off their estate planning.
If you found this useful, subscribe, share the episode with someone who needs it, and leave a review. What part worries you more: political firings funded by taxpayers or the risk of an unfinished will ending up in court?
Follow this link for a transcript of the show and links to the cases discussed.
A million-dollar poker run sounds like the ultimate loophole, until the CRA decides it looks like a job. We talk with criminal defence lawyer Michael Mulligan about a Supreme Court of Canada leave decision that leaves standing a key ruling on poker winnings and Canadian income tax, and the real lesson it carries for anyone who treats gambling like a serious side hustle or a full-time living.
We get into why most gambling winnings in Canada are generally tax-free under the Income Tax Act, then zero in on the exception: when the activity becomes business income. Hours spent, strategy, risk management, consistent profits, and relying on poker as your main source of income can all push you over the line. And if it’s business income, it can cut both ways, because deductions for losses and expenses may be available just like any other business.
Then we shift to a topic that frustrates the public and the courts alike: criminal cases that take too long. We unpack Jordan’s hard timelines under Charter section 11(b), what counts as delay, and how the Supreme Court now treats “exceptionally complex” prosecutions with many accused and mountains of disclosure.
If you care about Canadian law, taxes, and how court decisions affect everyday choices, hit subscribe, share this with a friend, and leave us a review. What do you think should count as “work” when luck is involved?
Follow this link for a transcript of the show and links to the cases discussed.
A locked gate at a kids’ camp sounds like a small-town nuisance until you trace it back to 1935 and forward to a trial date in 2027. We dig into a Greater Victoria dispute where companies say a historic public road, sometimes labelled Settlers Road or Glints Lake Road, should let them pass through Camp Thunderbird to reach adjacent land for a cell phone antenna. The twist is procedural: the lawsuit has dragged on since 2010, and the YMCA tries to have it tossed for want of prosecution after roughly 15 years of delay. We break down how BC Supreme Court judges weigh “inordinate delay”, excuses, presumed prejudice, and the interests of justice when time itself starts changing the evidence.
Then we pivot to a criminal law problem that hits even harder. Police recorded an interview where a key witness allegedly recanted, the investigation was closed, and years later the allegation returned with charges. The recording that could test credibility is gone. We unpack Charter section 7 disclosure rights, the duty to preserve evidence, and the line between an abusive process and “unacceptable negligence”, plus why the remedy often depends on how the rest of the trial unfolds.
We close with a Law Society discipline case involving client identification rules, anti money laundering safeguards, and a pro bono lawyer caught in the system. The fine gets overturned on judicial review, but the Court of Appeal blocks special costs against the Law Society, raising tough questions about accountability when a tribunal gets it wrong. If you value smart legal analysis grounded in real BC cases, subscribe, share this with a friend, and leave a review. What part of these rulings sits wrong with you?
Follow this link for a transcript of the show and links to the cases discussed.
A single Supreme Court of Canada decision can quietly change the ground rules for thousands of breakups, and this one just did. We unpack the Court’s creation of a new tort tied to intimate partner violence, described in terms of coercive control and coercive and controlling conduct, and we dig into what that really means when the behaviour isn’t limited to physical violence. If you’ve ever wondered how the common law can invent a new civil wrong, this is a live example with immediate consequences for family law and civil litigation in Canada.
We talk plainly about the hard part: definitions and incentives. The ruling points to emotional abuse, economic control, manipulation, isolation, and even improper litigation tactics, with broad language about autonomy, equality, and meaningful life choices. That may capture serious harm, but it also leaves lawyers and judges with little guidance on what crosses the line or how money damages should be measured. We explain why that uncertainty could turn more divorces into longer court battles, especially when property division is on the table and “fault” arguments start creeping back into a system built to avoid them.
Then we shift to a chilling criminal law case out of Victoria: two friends, drinking, cocaine, guns, and a so-called bulletproof vest that proves only bullet-resistant. The facts are grim, but the legal lessons are clear, from firearm offences and a polymer 80 type handgun to why you cannot legally consent to grievous bodily harm. We also break down how manslaughter works without an intent to kill, and why a firearm manslaughter conviction triggers a mandatory minimum prison sentence.
If you want more careful legal analysis that connects court decisions to real-world outcomes, subscribe, share this episode with a friend, and leave a review so more listeners can find us.
Follow this link for a transcript of the show and links to the cases discussed.
One email reply can feel harmless until it turns into a $17,500 invoice. We start with a recruiter placement fee fight that asks a deceptively simple question: when do you actually have a contract? A law firm agrees to work with an external recruiter, receives resumes, interviews a candidate, and hires them, then gets a “standard form” contract after the fact, demanding 17.5% of the salary. We unpack what contract law requires in British Columbia, why not every deal needs a signature, and why “sure” is not always acceptance of a price you never saw.
Then we shift to employment law and a fixed-term employment contract that ends right on schedule. A worker argues that passing a performance review and changing a title from manager to executive director effectively turns a one-year agreement into permanent employment. We walk through why the court rejects that theory, what a title change does and does not prove, and why clear written terms can prevent expensive ambiguity for both employers and employees.
We close with a cautionary tale from the Royal Vancouver Yacht Club: a 1969 wooden yacht collapses in a boat lift, and the owner sues for negligence, only to run into a signed waiver and a failed spoliation argument about overwritten video. The result highlights how enforceable waivers work, why evidence preservation matters, and how cost clauses can raise the stakes after a claim is dismissed. If you found this useful, subscribe, share the episode with a friend who signs things too fast, and leave us a review.
Follow this link for a transcript of the show and links to the cases discussed.
One decision can change a life, and another can quietly lock you into a guilty plea. We start with a heartbreaking civil claim tied to a mixed martial arts tournament and a kickboxing bout that leaves a 26-year-old UBC chemistry graduate in a permanent vegetative state. Because the event took place in space owned by Simon Fraser University, SFU ends up in the lawsuit and tries to shift responsibility to the province by pointing at the BC Athletics Commissioner, who approved kickboxing under the Criminal Code “prize fight” framework.
We dig into what that approval power really means, and why the BC Court of Appeal says it still does not create the kind of proximity needed for negligence. Using the Anns/Cooper analysis, we unpack duty of care, remoteness, and the core idea that a statutory decision-maker acting for the public good is not automatically on the hook for private damages when something goes wrong. It’s a clear look at the limits of government liability, even when a regulator could have said “no” and prevented the event from happening.
Then we switch gears to a BC Supreme Court ruling with everyday stakes: a speeding and driving-without-due-care ticket, a missed 30-day deadline under the Offence Act, repeated attempts on an online dispute portal, and the explanation that a cat damaged or “ate” the ticket. We walk through the extension-of-time test, what “arguable defence” requires, and why missing even one required factor can sink your application.
If you value practical legal takeaways and clear explanations of Canadian case law, subscribe, share the episode, and leave us a review. What part of these rulings do you think the courts got right or wrong?
Follow this link for a transcript of the show and links to the cases discussed.
A court system can have the best rules on paper and still grind to a halt when there is nowhere to hold people. We start with a fresh BC Supreme Court practice direction aimed at a problem that’s been building quietly across the province: accused people denied bail in communities with no correctional facility close enough to support a long trial. When daily transport is impossible and police detachments refuse to function as ad hoc jails, judges are left making hard calls that affect fairness, public safety and the Charter right to a trial within a reasonable time.
From chartered flights to the limits of small-town holding cells, we talk through why this is happening and what the court is now requiring through pretrial hearings. We also break down the real-world outcomes on the table: adjournments that risk delay arguments, moving trials away from the community where allegations arose, or releasing an accused from custody simply so the trial can proceed without collapsing under logistics. If you care about access to justice in British Columbia, this is where policy meets reality.
Then we turn to one of the biggest legal governance fights in BC right now: the constitutional challenge to the Legal Professions Act and the future of the Law Society of British Columbia. We dig into the idea of an independent bar as an unwritten constitutional principle, why that independence gives meaning to an independent judiciary, and what it could mean when legislation steers a legal regulator toward government priorities like UNDRIP while adding new approval structures and expanding appointment power. The trial decision lets the law stand for now, but the stakes are high and the next stop is likely the Court of Appeal.
Subscribe for more Canadian legal analysis, share this with someone who follows BC politics, and leave a review to help others find the show. What’s the bigger risk here: justice delayed by logistics or independence weakened by design?
Follow this link for a transcript of the show and links to the cases discussed.
A court decision appears online with almost everything blacked out: no registry, no lawyers, no location, no hearing date, and even the judge’s name is removed. All we’re left with is a disturbing question at the heart of Canadian criminal law: can someone become a confidential police informant without ever being clearly told they are one, and if so, what does that do to open court principles and public trust?
We walk through confidential informer privilege from the ground up, including why it is treated as near-absolute in Canada and why it can protect informants who are unreliable or acting for personal gain. Then we get into the moment that triggered the whole fight: after hours of a stalled interview, a detainee asks for a pen, writes “informal” on their hand, hides it from the camera, shows it to an officer who nods, and the recording suddenly goes off. The judge ultimately finds an implied promise of confidentiality on a balance of probabilities, despite the Crown’s opposition, raising real-world issues about secrecy, disclosure, and how policing actually works.
Then we shift to the Court of Appeal of British Columbia and a practical courtroom battle with huge stakes: when should a witness be allowed to testify by Zoom or Teams under the Criminal Code? In a referred murder conviction appeal after 17 years in prison, an officer who admitted recording key gunshot timings incorrectly wanted to testify remotely to avoid travel. The court said no, stressing the presumption of in-person evidence when credibility and fairness are on the line.
Subscribe for more Canadian legal analysis, share this with someone who cares about open courts, and leave us a review. Where do you draw the line between necessary secrecy and the public’s right to see justice done?
Follow this link for a transcript of the show and links to the cases discussed.
A court can end up deciding the fate of an island by looking at the scars on cedar trees and counting the rings inside them. We dig into a new British Columbia Court of Appeal decision on Aboriginal title for Nootka Island off Vancouver Island, where the key legal question is what “sufficient use” meant at the moment of sovereignty in 1846 under the Oregon Treaty. That one date forces everyone to reconstruct the past using expert anthropology, historical records, and physical evidence on the land.
We talk through the building blocks of an Aboriginal title claim in Canada: proving the proper Indigenous collective, demonstrating continuity and exclusivity, and even answering foundational questions such as whether the society had a concept of ownership. Then we get into the appellate turning point: culturally modified Western red cedar trees in the interior. The court challenges the idea that a marine-oriented culture only “used” the coastline, noting that canoes, paddles, ropes, hooks, clothing, and ceremonial items all come from forests. The discussion also tracks how the claim is framed to avoid competing interests for now, and why the ruling’s impact on the Forest Act and Parks Act raises real governance and resource questions.
We finish with a very different legal problem from Provincial Court near Enderby on Highway 97A: a tragic crosswalk death on Canada Day and a charge of driving without due care and attention. By breaking down Motor Vehicle Act section 179, we sort out right of way, what counts as being “on the highway,” the pedestrian duty not to step into traffic when it is impracticable for a driver to yield, and the role of reaction time evidence in the acquittal.
If you like practical legal analysis from BC courts with real-world stakes, subscribe, share the episode with a friend, and leave a review. What part of these rulings do you think will matter most going forward?
Follow this link for a transcript of the show and links to the cases discussed.
Messi-sized hype, premium ticket prices, then a last-minute announcement that the stars aren’t coming. We walk through the Vancouver Whitecaps class action that followed, including the consumer protection and contract claims that were pleaded and the court process that protects thousands of ticket buyers who never appear in court. If you’ve ever wondered how a class action settlement gets approved in British Columbia, we translate the legal test of “fair and reasonable” into plain language, including what notice looks like, what it means to opt out, and why a handful of objections can still trigger careful judicial scrutiny.
Then we get to the part that surprised many people: the settlement pays $475,000, but not to the class members. The money goes as charitable donations to BC sports organizations, with the judge accepting that distributing a few dollars per person could cost more than it’s worth once administration and verification are added. We also talk about the real-world “make-good” measures offered to fans, the requirement for clearer ticket language that players are subject to change, and how courts review class counsel fees and a representative plaintiff's honorarium.
From there, the legal grab bag keeps going. We unpack a Vancouver e-scooter case that starts with sidewalk and helmet issues, turns into a pursuit and the abandonment of bags at a muddy construction site, and ends with a police dog leading officers to a doggy daycare. Finally, we explain a major development under the Youth Criminal Justice Act: following a Supreme Court of Canada decision, the Crown must prove beyond a reasonable doubt that diminished moral blameworthiness is rebutted before a teen can receive an adult sentence, and courts must separate maturity from sentence-length objectives.
If you like sharp legal analysis tied to real BC headlines, subscribe, share the episode with a friend, and leave a review. What part of these outcomes feels most fair or most unsettling to you?
Follow this link for a transcript of the show and links to the cases discussed.
Two neighbouring provinces are running a live experiment on professional regulation, and the results could shape how Canadians think about law societies, licensing bodies, and government power. We walk through British Columbia’s Legal Professions Act changes, including the shift in what the Law Society is being asked to prioritize, and how that ties into disputes over mandatory cultural competency and sensitivity training for lawyers.
Then we cross into Alberta, where Bill 13, the Regulated Professions Neutrality Act, lands like a hard reset. The law sets out a “neutrality” framework that rejects assigning privilege or disadvantage based on enumerated personal characteristics or beliefs, and it specifically blocks regulators from mandating training on topics like cultural competency, unconscious bias, diversity, equity, and inclusion. Put beside BC’s approach, it’s a stark policy split, and it raises a bigger question: what happens to independent regulation when politics starts writing the regulator’s mission?
We also shift to criminal law and a case with an ordinary trigger and an extraordinary outcome. A dispute over an e-bike, a shove, a fall, and a death days later led to a manslaughter conviction, with the key issue being defence of property under Criminal Code section 35, not self-defence. We unpack the “reasonable in the circumstances” standard, the modified objective test, and why appeals courts usually won’t redo a trial judge’s judgment call.
If you care about legal rights, regulatory independence, Canadian criminal law, and where “reasonable force” really sits in practice, this one will stay with you. Subscribe, share the episode, and leave a review, then tell us: should governments ever steer professional regulators this directly?
Follow this link for a transcript of the show and links to the cases discussed.
A hyperlink and headline can change the stakes of a professional disagreement. We talk through a Victoria-based defamation lawsuit against the Law Society of British Columbia after a lawyer proposes changing mandatory Indigenous cultural competency training language about the Kamloops residential school from an asserted discovery of 215 bodies to wording focused on potential unmarked burial sites. When the Law Society links to a statement titled “Racist Resolution,” the dispute moves from policy and training content into reputational harm, defamation law, and what it means for a regulator to speak publicly during controversy.
From there, we dig into the mechanics that actually drive cases forward: pleadings, applications to strike “scandalous” material, and why a judge would order certain loaded words removed before a jury trial. We also connect the litigation to bigger governance questions in BC, including the Legal Professions Act and the push to embed reconciliation and UNDRIP implementation into the Law Society’s core duties, alongside concerns about preserving the independence of the legal profession from government control.
Then we switch gears to a surprisingly human problem with very real dollars attached: a liveaboard boat owner dies, the vessel sits in a Victoria marina for months, and the marina uses lien legislation under the Commercial Liens Act to secure payment and move toward sale. We unpack what counts as “storage,” why shore power can be essential, and how a redacted legal bill can backfire when a judge needs evidence to assess fairness and avoid double recovery.
If you care about Canadian defamation law, lawyer regulation in British Columbia, Indigenous reconciliation policy, UNDRIP, or practical disputes like marina liens and moorage fees, you’ll want to hear how these decisions get made. Subscribe, share the show with a friend, leave a review, and tell us: when institutions speak, how careful do they have to be with their words?
Follow this link for a transcript of the show and links to the cases discussed.
Someone dies, and the person beside them makes a choice that shocks everyone: no call for help, no report, just a body hidden away. We unpack a BC Provincial Court sentencing decision under Criminal Code section 182, the offence of offering an indignity to a dead body or human remains, and why the judge calls the conduct inherently serious even though there’s no finding that the accused caused the death. Along the way, we break down aggravating versus mitigating factors, the role of remorse and an early guilty plea, and how Gladue principles shape the court’s understanding of moral blameworthiness.
We also talk about the realities that don’t fit neatly into legal categories: addiction, fear, and the ripple effects on family and community when a person is treated as “missing” for weeks. The sentencing math matters too, including enhanced credit for time served because of brutal protective custody conditions that resemble solitary confinement, and why the court still concludes that a conditional sentence at home would not meet denunciation and deterrence.
Then the conversation swings to administrative justice and the BC Court of Appeal: a Whole Foods probationary firing that turns into years of litigation through the Workers’ Compensation system, judicial review, and parallel Human Rights Tribunal proceedings. We explain security for costs, why courts sometimes require it when an appeal is virtually without merit, and why overlapping tribunals can create expensive duplication. We close with a clear primer on habeas corpus under Charter section 10(c) and a key limit: when the Court of Appeal can, and cannot, appoint counsel. If you care about Canadian law, access to justice, and how courts balance principle with real life, subscribe, share the episode, and leave a review with the question you want us to tackle next.
Follow this link for a transcript of the show and links to the cases discussed.
A stolen truck blows a stop sign at 4 a.m., the driver vanishes into the dark, and ICBC says the injured victims didn’t take “all reasonable steps” to find who hit them. We dig into the Court of Appeal’s reversal and why the phrase reasonable must mean proportionate to the facts, not an endless checklist of posters, door knocks, and guesswork. When police have already run dog tracks, canvassed cameras, interviewed witnesses, and done forensics, what more would actually move the needle—and when does “try harder” become obviously futile?
From there, we shift to a second legal fault line: Aboriginal title and private property in the Cowichan Tribes litigation. A corporate landowner pushes to reopen the case, arguing they should be heard on how title findings could affect fee simple land. The judge draws a crucial line: Cowichan Tribes didn’t say private property would never be affected; they said the effect wasn’t being decided in this case. That single nuance recasts public assurances like “not at stake” into “not yet,” raising hard questions about notice, delay, and what thousands of owners reasonably knew—or didn’t know—over the years.
Together, these stories show how outcomes hinge on precise language and practical context. For crash victims, the ruling tempers ICBC’s strict stance and acknowledges the real value of a thorough police investigation. For property owners, it underscores that future proceedings may still test the security of fee simple, and that timely, clear notice matters. If you care about no‑fault insurance, hit‑and‑run claims, Aboriginal title, or the reliability of political promises, this conversation offers clarity, caution, and concrete takeaways. Listen, share with someone who needs to hear it, and subscribe to get our next breakdown.
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A hose can start a lawsuit—and a precedent can end one. We dive into two fresh BC court decisions that show how civil law balances fairness, timing, and finality. First, we break down a neighbourhood flooding dispute where homeowners sought to amend their notice of civil claim to add trespass by water and psychological injury tied to both the intrusion and an insurance denial. We explain why “trespass by water” is a real, narrow pathway—requiring a direct projection of water—and how it differs from nuisance or negligence. We also unpack the duty of good faith in insurance, when mental distress damages become possible, and how judges weigh late amendments against limitation periods, prejudice, and trial readiness.
Then we shift to a West Kelowna resort where restrictive covenants forced unit owners into a single rental pool. Years after the Court of Appeal found those covenants unenforceable for uncertainty, a new group of owners sought the same relief—only to face “new” evidence and a different ruling in chambers. The Court of Appeal stepped in, calling that relitigation an abuse of process and reaffirming stare decisis. We outline why finality matters, how judicial economy protects everyone, and what this win means for owners who want the freedom to rent privately or choose different management.
If you care about property rights, insurance law, and the nuts and bolts of civil procedure, this one offers practical takeaways: plead early and clearly, disclose injuries promptly, and do not expect a second bite at a settled apple. Subscribe, share with a friend who loves legal insight, and leave us a quick review to tell us where you stand on late amendments and legal do-overs.
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Your face might already live in a searchable database—and BC’s courts just drew a sharp line around what companies can do with it. We break down a major ruling that upholds the privacy commissioner’s order against Clearview AI, unpack why “publicly available” doesn’t mean “free to scrape,” and explain how a province can regulate a US firm with no brick-and-mortar presence. This is a story about jurisdiction in the age of the internet, biometric data rights, and the limits of consent on social media platforms Canadians use every day.
From there, we pivot to a wildfire zone, where a tiny drone met a big legal problem. When a helicopter pilot fighting the Kelowna blaze was irritated and distracted by a nearby drone, the court found that distraction alone interfered with fire control under the Wildfire Act. We walk through the difference between strict and absolute liability, why due diligence matters, and how “no harm done” isn’t a shield when public safety is at stake.
We close with a sign of the times: 3D printed suppressors that triggered prohibited device charges. Beyond the plastic parts and lab delays, the headline is new criminal exposure for simply accessing or possessing digital files intended to produce firearms or key components. We talk through how Canadian firearms law treats suppressors, why courts imposed a conditional sentence rather than jail in this case, and what makers and hobbyists need to know before downloading a file that could cross a legal line.
If privacy, drones, or maker tech lives anywhere near your world, this episode offers clear, practical takeaways: don’t assume public equals fair use, steer drones far from emergency operations, and think twice before clicking on gun-printing files. Subscribe, share with a friend who needs a reality check on tech and law, and leave a review to tell us where you think the line should be drawn next.
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A live wiretap, a lawyer on the line, and a rule that said “stop listening”—which police ignored. We dive into a rare Supreme Court of Canada decision where constitutional safeguards, solicitor-client privilege, and the search for truth collide. The stakes are real: can a lawyer use privileged communications to defend themselves when facing criminal allegations, and what happens when the state breaches explicit limits on surveillance?
We walk through why solicitor-client privilege is foundational, who actually owns it, and how the Court carved a tight “innocence at stake” exception without gutting client confidence. You’ll hear how a two-step threshold protects privilege in most cases while safeguarding against wrongful convictions. Then we examine the Charter lens under section 24(2): why the entire recording was tossed, how the seriousness of the breach mattered, and why the absence of reprimand or corrective steps by authorities weighed heavily against admission.
From there, we turn to a different kind of wall: Crown immunity. A survivor’s civil claim alleging sexual assault by jail guards in 1972 confronted the hard edge of history. Before the 1974 Crown Proceedings Act, the province couldn’t be sued, and the courts have held that the change is not retrospective. We unpack why a late-stage defence amendment was allowed, why a novel “duty of care” theory against opposing counsel failed, and how statutory limits can leave profound harms without civil recourse. It’s a sobering picture of how legal architecture protects rights, constrains power, and sometimes forecloses remedies.
If you value smart, practical analysis of criminal law, Charter rights, and civil liability against the state, you’ll find clarity and context here. Follow the show, share this episode with a friend who loves legal deep dives, and leave a review telling us where you think privilege should bend—or hold firm.
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Big wins, bigger rules, and the fine print that shapes how money and data move in British Columbia. We start with the sourced cash condition that kicks in when casino buy‑ins exceed $10,000 and follow a frequent winner who challenged the requirement as unfair. The court weighed his argument against a framework that aims to deter money laundering with minimal burden, landing on a pragmatic outcome: reasons should usually be given, but receipts and bank trails are a reasonable gate to the high‑cash floor.
From the cage to the checkout line, we then trace how Home Depot shared hashed email addresses from e‑receipts with Facebook to measure ad performance. The privacy class action clears a major hurdle, and the Court of Appeal signals that common issues can proceed even when individual impacts vary. One notable wrinkle: corporations aren’t automatically excluded from privacy protection where legislation is silent. For customers, it’s a real‑world lesson in how ad‑tech works behind the scenes; for businesses, a reminder that consent, transparency, and vendor integrations must line up with privacy law.
We close with a difficult truth about B.C.’s no‑fault auto insurance and the absence of robust wrongful death damages. After a fatal crash caused by a driver fleeing police, grieving families face strict limits on compensation despite criminal convictions. The law values economic loss far more than grief, leaving young victims’ families with modest benefits that feel stark compared with the harm. It’s a policy choice with real human cost, and we explore what meaningful reform could look like.
If this conversation helped you see the legal landscape a little clearer, follow the show, share it with a friend, and leave a quick review to tell us what you want to hear next.
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A courtroom isn’t a referendum on character, and we dig into why that principle matters. We break down the Supreme Court of Canada’s updated guidance on Corbett applications—the rules that govern when an accused’s criminal record can be used to challenge credibility. We talk plainly about the balancing test judges apply: weigh probative value against unfair prejudice. Dishonesty offences like fraud and perjury can be highly relevant to truthfulness; dated youth convictions for non‑deceitful violence usually are not. In the case we cover, the trial judge erred by admitting the latter, but the conviction still stood because the evidence was overwhelming. It’s a sharp lesson in tailoring cross‑examination to credibility, not propensity.
Then we pivot to travel law with a surprising twist: a passenger burns his hand serving oatmeal in an airline lounge and sues. We map the Montreal Convention’s strict liability regime and why “embarking” is the line that matters. Being in a branded lounge past security isn’t enough; you need to be within the airline’s boarding control, like lined up at the gate. With the Convention off the table, the claim turns on occupiers’ liability. Reasonable safety does not mean perfect safety, and common sense counts. Hot food is hot, a clear flame symbol was present, and there was no proof of excessive temperature or unsafe setup—so no negligence.
We close with a procedural reality check: reopening a case after you lose is rare. Courts will only allow it to prevent a miscarriage of justice, not to offer a second chance to fix gaps in evidence. Across these stories, a consistent theme emerges: Canadian law protects fairness through careful boundaries—on what juries hear, when airlines are strictly liable, how far safety duties go, and when a judgment is truly final. Enjoy the tour through credibility, common carriers, and courtroom finality—and if this resonates, follow, share, and leave a review to help others find the show.
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A will that looks proper on paper can still fall apart under real scrutiny. We walk through a striking Court of Appeal decision where a 92‑year‑old’s revised will took 18 nieces and nephews from life‑changing inheritances to token gifts, while siblings stood to gain over a million each. The key isn’t drama; it’s doctrine. When circumstances around a will raise well‑grounded suspicion—undue influence, unclear capacity, or radical shifts without explanation—the usual presumption of validity drops away, and the burden flips to the person pushing the will to prove it’s sound.
We unpack how that burden‑shifting works, why “residue” can hide huge sums, and what evidence is needed to show the testator actually understood the size and consequences of their choices. You’ll hear how earlier documents, contradictory statements, and who drafted instructions can become powerful facts. In the end, the appellate court restored the original 2001 will, returning substantial shares to the nieces and nephews and offering a roadmap for spotting red flags in estate planning.
Then we change gears to civil costs in British Columbia. A neighbour dispute over excavation damage led to a modest award in the Supreme Court, raising hard questions about forum selection, mitigation duties, and how costs can swing based on strategy and behaviour. One twist: the self‑represented plaintiffs relied on AI, which produced fake case citations. Thankfully, counsel caught the hallucinations immediately, but there were still cost consequences—and a clear lesson. Use AI as a starting point, never an authority. Verify every citation on CanLII, read the full text, and note up decisions to see what the law is today, not yesterday.
If you care about clean estate planning, sound litigation strategy, and staying safe with legal tech, this conversation is your checklist. Subscribe, share with someone who needs it, and leave a quick review to help others find the show. What part challenged your assumptions most?
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What happens when a charity’s promise of affordable homeownership collides with tenancy law, a defendant’s faith collides with courtroom rules, and a tiny ownership share collides with a big tax bill? We dig into three BC Court of Appeal storylines that ripple through daily life, showing how legal reasoning protects public purpose, fair trials, and housing policy.
First, we unpack a pivotal ruling that keeps Habitat for Humanity’s early occupancy model alive. A participant who entered a home through sweat equity and income-based “occupancy fees” argued she was a tenant protected by the Residential Tenancy Act. The Court of Appeal took a purposive view: those flexible, sometimes zero-dollar payments weren’t rent, and the agreement aimed at ownership, not tenancy. By restoring the original adjudicator’s call, the court preserved a pathway for families to move toward buying, without forcing a charity into a role it wasn’t designed to fill.
Next, we tackle the sharp line between mental illness and trial fitness. A woman facing a firearm charge held intense religious beliefs, rejected medication, and said Jesus would represent her. The Crown claimed she was unfit; the judge said she understood the nature and consequences of proceedings and could communicate with counsel. The takeaway is clear: the law presumes fitness and respects even poor or unconventional choices unless a mental disorder blocks basic comprehension. Faith-informed thinking isn’t the same as being unable to have a fair trial.
Finally, we clarify a costly misconception about the foreign buyer tax. A couple split title 95/5 between a Canadian and a foreign national, hoping the surcharge would apply only to the small share. The court said the tax hits the full property value when any buyer meets the foreign buyer definition, reflecting legislative intent to deter workarounds through fractional title or trusts. If you’re structuring a purchase, this ruling sets expectations and helps avoid expensive surprises.
If you found these insights useful, follow the show, share it with a friend, and leave a review telling us which ruling changed your mind.
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A small BC registry faced an outsized problem: one litigant’s avalanche of quasi‑legal letters and “certificates” that looked official enough to demand hours or days of staff time to sort, scan, and check. We trace how the Attorney General sought an injunction and how the court landed on a careful middle ground—no more bulk mail, but full access for legitimate filings in person, by agent, or through Court Services Online, with authority to discard items that don’t meet the Rules of Court. It’s a practical fix aimed at protecting open courts from being gamed by invented paperwork, without closing the door on real claims.
From there, we pivot to the high‑stakes world of civil forfeiture and unexplained wealth orders in British Columbia. Unlike criminal forfeiture, these tools can target property without a conviction and sometimes on reasonable suspicion alone. We break down how the civil standard shifts burdens, why Section 8 privacy arguments matter, and what “in rem” actions mean when the state goes after assets rather than people. You’ll hear how cross‑border conduct can still count as “unlawful activity,” what judicial discretion really looks like at this threshold, and why “constitutionally permissible” isn’t the same as wise policy.
Across both stories runs a shared question: how do we keep the justice system open, efficient, and fair when it’s pulled between access and abuse, privacy and enforcement? We offer clear explanations, grounded examples, and practical context to help you form your own view on filing limits, registry triage, property rights, and the true cost of suspicion‑based powers. If this conversation helps you see the legal system with sharper edges, share it with a friend, subscribe for more thoughtful breakdowns, and leave a review to tell us where you stand.
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Courtrooms, campus corridors, mountain slopes, and border tarmacs: we connect them through three rulings that change how you navigate rights, rules, and risk. We start with a Vancouver Island University protest case where banners, ladders, and megaphones escalated into disruptions of exams. The student fought a two‑year suspension, arguing misidentification, unfair process, and—most ambitiously—freedom of expression under the Charter. We walk through why the court said no, revisiting Dolphin Delivery and the baseline that the Charter restrains government, not institutions acting independently. In BC, universities aren’t automatically treated as government actors, so Charter arguments usually fail unless legislation compels the action. The practical takeaway is clear: campus discipline lives under university policy and administrative law, not constitutional guarantees.
Then we climb into the backcountry with a Wildlife Act prosecution that turned on what “full curl thinhorn ram” actually means. Is it age, horn length, or both? At trial, experts wrangled over true versus false annuli, and the hunter was convicted. On appeal, the court read the regulation’s “or” as a real alternative: either eight years as proven by annuli or a horn tip that extends beyond the nose bridge plane when viewed squarely from the side. That interpretation aligns with field reality, where counting ridges through binoculars is guesswork. For hunters, this sets a safer path: document the side view and horn tip position to meet the length criterion without winning a lab fight over annuli.
We land with a hard deadline at the border. A sniffer dog allegedly damaged a multi‑million‑dollar helicopter during a customs search. The owner complained immediately and filed a claim, but the later lawsuit missed a little‑known limit: the Customs Act requires claims within three months. The court enforced the clock and dismissed the case, even while acknowledging the fairness concerns. If border searches damage your property, act fast—document everything, get estimates, and file in the correct court before the window slams shut.
Want practical law without the jargon? Press play for a grounded guide to: when free expression stops at the campus gate, how one word in a regulation can flip a conviction, and why a hidden limitation period can decide your whole case. If this helped you spot risks early, follow the show, share it with a friend, and leave a quick review telling us which case hit home.
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A 76-page justice overhaul just landed, and we’re diving into what actually changes for victims, accused persons, and the people who keep our courts running. We break down how Bill C-16 reframes parts of criminal law—naming femicide as a route to first-degree murder, tackling AI-generated intimate images and deepfakes, and defining coercive control—while asking the hard question: can an already stretched system carry the weight?
We walk through the new femicide framework and why proving patterns of coercive or controlling behaviour will demand careful evidence and clear jury instructions. Then we turn to the digital front: offences targeting realistic AI fabrications, “nudify” apps, and the spread of synthetic sexual content. You’ll hear how the “likely to be mistaken” standard may hinge on context, labelling, and expert testimony, and why enforcement will test both legal doctrines and tech literacy.
Delay is the thread that ties it all together. We explore how pretrial screening in sexual offence cases—lawyers for complainants, notice periods, and multiple hearings—slows trials, and how C-16’s timing tweaks may help at the margins but won’t replace the need for more judges, Crown, defence, and courtrooms. On sentencing, we unpack the shift that lets courts set aside mandatory minimums when they would be grossly disproportionate for the individual—fairer outcomes, but likely more litigation. We also highlight humane changes that support witnesses, including broader remote testimony and support animals.
To ground the legal theory in real life, we close with a BC case on who qualifies as a spouse under the Family Law Act. The two-year marriage-like rule sounds simple—until on-and-off relationships, shared business ties, and disputed “gifts” like a six-figure SUV enter the picture. The result is a cautionary tale about continuity, documentation, and the legal weight of domestic arrangements.
If you care about safer communities, fair process, and workable courts, this conversation maps what’s coming—and what still needs funding and focus. If the analysis helped, follow the show, share it with a friend, and leave a quick review to help others find thoughtful legal content.
Follow this link for a transcript of the show and links to the cases and legislation discussed.
A single sentence can change a career. We open with a real-world case: a shuttle driver on SFU property tells a flagger she’s “unbelievably beautiful” and suggests modelling. Security documents the exchange, the university issues a campus ban, and the employer fires him. He then pushes for the complainant’s identity under FOIPPA, arguing that the decision-makers needed complete, accurate information. We walk through why FOIPPA binds public bodies but not private companies, how section 28 actually works, and why the court said disclosure wasn’t required when the driver admitted the key facts. Plus, we flag the sting in the tail: special costs when you sue the wrong parties.
From there, the stakes rise. Mid-trial in Vancouver, a mother asks to relocate her eight-year-old to Thailand. The judge says no on best-interests grounds. She leaves anyway, hides her location, and starts a case abroad. We explain how habitual residence anchors jurisdiction, why the Hague Convention exists to stop jurisdiction shopping, and how credibility findings—false affidavits, financial misstatements—reshape custody, support, and costs. The practical takeaway is stark: unilateral moves during active proceedings invite severe legal consequences and can fracture future parenting arrangements.
We close with the Lytton wildfire class action. Plaintiffs allege a passing train ignited the fire; the defendants point to onboard video, sensors, and clean inspection data. The court certifies the case, clarifying that the standard is some basis in fact, not proof. Timing, location near the tracks, tinderbox conditions, and a supportive expert opinion clear the threshold. Certification doesn’t decide liability—it ensures a fair, efficient path to test common issues, expert evidence, and causation at trial.
If you value clear, no-spin explanations of how law affects real people—from campus discipline and privacy to cross-border parenting and community-scale claims—follow the show, share it with a friend, and leave a review telling us which case challenged your assumptions.
Follow this link for a transcript of the show and links to the cases discussed.
A signed page beside a will. A daughter who gave up her life to care for her parents. A court is asked to decide whether a single sheet of paper can rewrite an estate. We dig into a recent BC Supreme Court ruling to unpack how WESA’s formal requirements and the curative power of section 58 actually work when intention, capacity, language, and timing collide. If you’ve ever wondered whether “wishes” are enough, this story shows why two witnesses, translation, and dated execution details matter more than heartfelt words.
Then we pivot from probate to plumbing with a small claims case that starts with a jailhouse phone call and ends with a $34,000 invoice. The homeowner’s mom acted as go‑between while crews replaced pumps, chased leaks, and tackled a failing septic system. With spotty records and no signed work authorizations, the judge had to reconstruct a contract from dispatcher notes, GPS logs, and receipts. The result lies between free fix and blank cheque: agency is recognized, unjust enrichment is avoided, and the final award is trimmed to what’s reasonably proven.
Across both cases, one theme holds: intent without process is a gamble. For families, that means executing wills to WESA standards, confirming capacity, and ensuring translation for non‑fluent testators. For trades and contractors, that means written scope, clear rates, change orders, and contemporaneous records that survive scrutiny. These aren’t legal niceties; they are the difference between peace and protracted fights—between getting paid and getting pared down.
If this conversation helps clarify how to protect your wishes and your work, follow the show, share it with someone who needs it, and leave a quick review so others can find it. Your feedback helps us tackle more real cases with practical takeaways.
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A single sentence in the Criminal Code can decide whether you can legally remove someone from your home—or whether you’re suddenly the one at risk of an assault charge. We break down a fresh BC Supreme Court ruling that reads purpose into Parliament’s 2011 reforms on self-defence and defence of property, answering a practical question with big stakes: if you invite someone in and later revoke consent, can you use reasonable force to make them leave? Short answer: yes, if you give a reasonable time to go and the force is proportionate, because the law was never meant to grant squatters’ rights to rowdy guests and stubborn salespeople.
From there, we follow the thread of “reasonableness” into family law. British Columbia treats partners who live together in a marriage-like relationship for two continuous years as spouses for property division, but the crucial trigger is separation. The two-year limitation period starts when you separate, not when the romance finally fizzles. In the case we unpack, on‑again, off‑again reunions couldn’t reset the clock. If you plan to claim division of property, mark the separation date, organise documents, and act before the window closes.
We close with a cautionary tale about civil procedure and proportionality: a $9,000 used SUV, mechanical trouble, and a claim that ballooned to $250 million. The court ordered security for costs, balancing access to justice against the burden of defending an outsized, low‑merit case with little chance of recovering expenses. Together, these stories showcase how Canadian courts weigh text, purpose, and fairness—guarding property rights, enforcing clear timelines, and filtering litigation through practical safeguards.
If you enjoyed the analysis, follow the show, share it with a friend who loves real‑world law, and leave a quick review to help others find us.
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Ever wondered when a judge’s questions stop clarifying and start tilting the scales? We dive into a BC sexual assault case where the trial judge’s heavy-handed interventions—pages of pointed questioning, steering how evidence was led, and relying on answers personally elicited—pushed the process past what a reasonable observer would call fair. The conviction didn’t fall because of proven bias, but because the appearance of fairness matters just as much as the verdict, and the court ordered a new trial to reset the game.
From that courtroom moment, we zoom out to a piece of Canadian legal history that still shapes modern practice: private prosecutions. Yes, “anyone” can lay an information, but today the pathway runs through built-in safeguards—judicial screening, notice to Crown Counsel, and the power for Crown to take over and stay proceedings. We explain when that discretion is virtually unreviewable, and when it crosses into abuse of process due to bad faith, improper purpose, or actions that undermine the integrity of the justice system. Along the way, we examine a real-world attempt to weaponize private prosecutions against police, prosecutors, and politicians, why it failed on evidentiary grounds, and how courts use tools like summary dismissal and ad hoc Crown to keep the system credible.
If you care about fair trials, judicial neutrality, prosecutorial discretion, and the rare but critical safety valves that keep politics in check, this conversation offers a clear, grounded tour of the law in action. Subscribe, share with a friend who loves legal deep dives, and leave a review to tell us where you think the line should be drawn.
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A 20-year online feud that began on a community website ended with a meticulously planned attack inside a BC courtroom—red clothes to hide blood, a packed suitcase, a knife and a hammer, and alcohol for courage. We walk through how the trial judge weighed mental health evidence against extensive planning, why the NCRMD standard remains a high bar, and how appellate courts defer to sentencing judges unless there’s a clear error. You’ll hear exactly why a 12-year sentence held firm despite arguments for reduced moral culpability.
Then we pivot to a case that could change how your parcels land at your door. Consumer Protection BC ruled that “delivered to the consumer” means more than GPS at your address and a hand-off to an unknown person. When a buyer never saw his $500‑plus item, Amazon leaned on coordinates and history; the regulator leaned on the statute. The result: a full refund, legal costs, and a $10,000 penalty. We break down distance sales contracts, the 30‑day delivery rule, and why terms of service can’t erase statutory rights. For shoppers, this means real recourse when packages vanish. For sellers, it means building proof that the consumer actually received the goods—think signatures, verified IDs, or explicit consent for alternative delivery methods.
Along the way, we highlight the role of courthouse sheriffs in preventing tragedy, the practical meaning of mitigation at sentencing, and the evidence standards that separate suspicion from proof in both criminal and consumer contexts. If you care about justice, safety, and what “delivered” really means, this conversation will sharpen your understanding and give you steps you can use today.
If you found this useful, follow the show, share it with a friend, and leave a quick review so more listeners can find it. What’s your take: should high‑value deliveries always require a signature?
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Think “bail reform” will clean up street disorder? We take a hard look at what Bill C‑14 really changes and why it targets the wrong problem. From the presumption of innocence to the right to remain silent, we trace how symbolic tweaks and reverse onus proposals collide with Charter protections while doing little to speed justice or improve safety. If the true bottleneck is time to trial, then the fixes live in courtrooms, staffing, treatment, and housing—not in performative reminders to judges about conditions they already use.
We map the actual bail framework: primary grounds to ensure appearance in court, secondary grounds to protect the public, and tertiary grounds to maintain confidence when the case is overwhelming. Then we examine the principle of restraint, a constitutional guardrail that forbids using bail as punishment or a shortcut to rehabilitation. Along the way, we challenge the idea that adding factors like “outstanding charges” will move the needle when judges already account for risk and record. Tough talk can’t replace trial capacity, and piling on conditions cannot stand in for a system that’s too slow to deliver verdicts.
The conversation shifts to life‑or‑death stakes with the Good Samaritan Drug Overdose Act and the Supreme Court of Canada’s ruling in Wilson. Parliament’s aim was direct: remove the fear of possession charges when someone calls 911 and stays to help, so more people survive overdoses. The Court agreed that immunity from being charged or convicted necessarily blocks arrests for possession in that context, preventing end‑runs that chill emergency calls. Police still have tools for other offences when grounds exist, but they can’t use possession as a pretext at overdose scenes. It’s a decision that aligns law with public health and trust.
If you want a justice system that is fair and effective, this episode offers a clear roadmap: defend core rights, invest in speed and capacity, and design laws that solve real problems. Listen, share with a friend who cares about public safety and civil liberties, and leave a review to keep these conversations moving forward.
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A guilty plea, a forgotten past, and a courtroom test of how identity meets justice. We open with a 2011 assault case resolved by a joint submission: an 18‑month conditional sentence after the accused conceded his force exceeded self‑defence. Years later, he discovered his father was Indigenous and obtained status, then sought an out‑of‑time appeal to revisit both plea and sentence. We walk through the legal gatekeeping for late appeals—intention, prejudice, merit, and the interests of justice—and unpack why section 718.2(e) and the Supreme Court’s Gladue jurisprudence require more than ancestry alone. Without a Gladue report or concrete evidence tying personal background to the offence and sentence, the Court of Appeal found no basis to disturb a non‑custodial disposition, underscoring the balance between individualized justice and finality.
Then the floor drops out on a modern confidence game. A Victoria woman was lured by “1% per day” crypto returns, saw early profits, re‑mortgaged her home, and pushed $671,000 through a cryptocurrency exchange to a third‑party wallet. Could the exchange be liable in negligence? We break down duty of care, standard of care, causation, and damages, and why the court concluded the platform did everything a reasonable exchange should: prominent written warnings, live calls from staff and a supervisor urging her to stop, risk scoring on the destination wallet, and documented customer pressure to proceed. The claim failed, and the case now stands as a sharp warning about irreversible blockchain transfers and the psychology of fraud.
If you care about Canadian criminal law, Indigenous sentencing principles, or investor protection in crypto, this story delivers practical takeaways: build a real record for Gladue considerations; treat “guaranteed” returns as a red flag; and know that platforms can warn you, but they can’t always save you. Like what you heard? Follow the show, share it with a friend, and leave a quick review to help others find thoughtful legal analysis that cuts through the noise.
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A notorious criminal case and a sweeping policy change collide in one packed hour, and the throughline is unmistakable: how law balances dignity, proof, and practical consequences. We start by unpacking the latest development in the Robert Picton matter: with the RCMP ending their investigation and holding thousands of seized items—some believed to be human remains—families sought a court order to keep everything preserved for a civil occupiers’ liability claim against Picton’s estate and his brother. We walk you through why the judge refused. The key: meticulous police documentation, DNA profiles, and forensic records made the physical remains unnecessary to the civil issues, while the coroner is legally mandated to identify, notify families, and ensure respectful disposition. It’s a difficult ruling with a humane core—moving evidence out of limbo and toward answers.
From there, we pivot to construction law’s next big shake-up: Bill 20, the Construction Prompt Payment Act. If you build, supply, wire, pour, or manage, this matters. We break down the “proper invoice” requirements, the 28-day payment clock (plus seven days per tier), and the new adjudication system designed to unstick payment disputes before they snowball. We map real-world risk: multi-layered chains, scope changes, and deficiency claims colliding with statutory deadlines. And we examine oversight, including how judicial review is framed, why documentation will be your best defence, and how to align contracts, invoicing, and site practice so cash keeps moving.
By the end, you’ll understand why the court’s decision may bring families closer to closure—and why construction businesses need to prepare now for compliance, adjudication, and potential work stoppages if payments fail. If this conversation helps you think differently about evidence, dignity, and getting people paid, follow the show, share it with your team, and leave a review to help more listeners find it.
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A seven‑month marriage sparked on a sugar‑arrangement site, a $12,000/month support bid, and a dog named Frankie—this one has layers. We open with a candid walk‑through of interim spousal support: what it’s for, how courts weigh “capacity to pay,” and why selling capital assets to fund an opulent lifestyle isn’t the same as earning income. The applicant’s luxury‑level budget meets judicial scrutiny, while the respondent’s push to impute escort income and point to family wealth hits legal limits. The end result—$4,000/month plus a retroactive lump—shows how judges balance short marriages, realistic needs, and the difference between lifestyle and income.
Then the plot thickens. A same‑day, ex parte protection order leads to disputed removals from the home and a tussle over Frankie. We unpack how BC’s Family Law Act treats companion animals: not as handbags, but through factors like who provided care, safety concerns, and well‑being. On an interim basis, Frankie stays put—illustrating how courts separate urgent stability from final outcomes and insist on full candour when seeking protective relief.
The second half pivots to evidence law and a rare rebuke: the province sought a lifetime ban on a man from a welfare office, relying on an internal incident report as a “business record.” Both the trial court and the Court of Appeal said no. We explain why “ordinary course of business” demands reliability—think automated receipts and bank statements—not a narrative drafted post‑incident for litigation. Even beyond admissibility, the appellate court flags proportionality: a permanent injunction is an extraordinary remedy, not a default response.
If you care about how courts actually draw the line between income and spending, how interim orders stabilize without deciding the future, how pet custody really works, and when business records are admissible, this conversation is your blueprint. Listen, share with a friend who loves law done plainly, and leave a quick review to help others find the show.
Follow this link for a transcript of the show and links to the cases discussed.
Where do your constitutional protections begin and end? The dividing line between private actions and state authority forms the heart of a fascinating BC Court of Appeal decision that clarifies when ordinary citizens become "agents of the police."
The case centers on Loomis Courier employees who, at police direction, set aside suspicious packages for warrantless seizure during a drug investigation. Unlike previous cases involving independent security guards or school administrators, these employees were acting on specific police instructions. The Court established that the key test is whether individuals would have conducted themselves the same way "but for" police involvement—a crucial distinction that determines whether evidence can be excluded from criminal trials.
Privacy rights received further examination in a separate ruling that overturned a class action against the doctor rating website RateMDs.com. The Court determined that publicly available professional information—like a doctor's office address or phone number—doesn't carry a reasonable expectation of privacy protected under BC's Privacy Act. This distinction between truly private information and professional details available through other sources highlights the contextual nature of privacy protections in the digital age.
The Court also addressed the tension between professional standards and constitutional freedoms in a case involving a lawyer disciplined for sharing inappropriate "locker room talk" about a judge with a client. While not condoning the behavior, the ruling emphasized that regulatory bodies must balance conduct requirements against fundamental rights like freedom of expression—even when regulating professionals whose speech carries special responsibilities.
These rulings collectively illustrate how courts navigate the complex intersection of individual rights, professional obligations, and state authority. They remind us that understanding these boundaries is essential in a world where the line between private and public actions continues to blur. What private actions in your life might unexpectedly cross into constitutional territory?
Follow this link for a transcript of the show and links to the cases discussed.
What happens when the line between victim and perpetrator blurs in the eyes of the law? When a homeowner confronts a crossbow-wielding intruder or store employees stop a car theft, should they face criminal charges or civil lawsuits for defending themselves and their property?
Barrister Michael Mulligan unpacks the controversial legal landscape of self-defense in Canada, explaining how the 2012 amendments to the Criminal Code created a complex "reasonableness" requirement for those protecting themselves or others. This means that even when facing deadly threats in your own home, the law expects you to consider factors like the relative size, age, and gender of your attacker before responding. As Mulligan notes, "When you're fighting for your life or to save your children, you don't need to worry about weighing up how old this person is and what their gender is."
The discussion extends beyond criminal liability to civil lawsuits, highlighting a case where a self-described "career criminal" is suing grocery store employees who prevented him from stealing a car, claiming they damaged his self-esteem. This mirrors Alberta's experience, where a rancher faced legal action from a thief after firing a warning shot. The provincial response—legislation preventing "criminal trespassers" from suing unless force was "grossly disproportionate"—offers a potential model for other provinces.
The episode also examines a revealing case about Uber's wheelchair accessibility requirements in BC. Instead of mandating accessible vehicles, the government collects a 90-cent fee per non-accessible trip—money that disappears into general revenue while wheelchair users remain unable to use the service. When one wheelchair user won a $35,000 human rights award, the BC Supreme Court overturned it, revealing the tension between regulation and actual solutions.
These cases raise fundamental questions about our legal priorities: Should we better protect those defending themselves and their property? And when regulations like Uber's accessibility fee don't solve the actual problem, what's their real purpose? Listen for an eye-opening look at where our laws might be failing those they're meant to protect.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when a legal system designed for small claims is used to tackle complex issues involving international companies and constitutional requirements? Barrister and Solicitor Michael Mulligan takes us inside a fascinating recent case that exposes serious flaws in British Columbia's Civil Resolution Tribunal system.
Originally created to efficiently handle disputes under $5,000 and minor strata disagreements, the CRT has been expanded into areas far beyond its capabilities. The recent decision involving Twitter/X reveals a troubling reality: secret decisions and unenforceable orders against international companies, with no authority to address constitutional challenges, and vulnerability to exploitation through AI-generated submissions. The tribunal found itself ordering a Texas company to mail a $100,000 penalty to a Victoria PO box - an exercise in futility that undermines confidence in our justice system.
The conversation then shifts to a cautionary tale about insurance coverage that every homeowner needs to hear. A family lost hundreds of thousands in coverage when their house burned down from a prayer candle fire - not because of any wrongdoing related to the fire, but because they failed to disclose an abandoned marijuana grow operation in a distant outbuilding. This case demonstrates the critical "utmost good faith" principle in insurance: failing to notify your insurer in writing about any material change in risk can void your coverage completely, even when that change has nothing to do with your claim. Consider all the renovations, changes, or activities on your property that might constitute "material changes in risk" - your financial security may depend on proper disclosure.
Follow this link for a transcript of the show and links to the cases discussed.
Fentanyl trafficking sentences in BC just got a major overhaul. The BC Court of Appeal has mapped out clearer sentencing guidelines, creating a three-tier system that reflects the devastating impact of the deadly opioid crisis. Street-level dealers now face 18 months to 3 years, mid-level traffickers 4-7 years, and wholesale distributors 8-15 years behind bars. The Court emphasized this framework still allows judges to tailor sentences to individual circumstances, but makes clear that the gravity of fentanyl trafficking demands serious consequences. With over 14,500 British Columbians having lost their lives to toxic drugs in just eight years, the justice system is responding with a structured approach to punishment.
At Simon Fraser University, academic freedom and freedom of association collided when faculty members challenged their own Faculty Association's resolutions on Gaza. The controversial statements narrowly passed but sparked a legal battle under the Societies Act. The case highlights a fascinating tension - what happens when you're required to belong to an organization that takes political positions you fundamentally oppose? The court ultimately allowed the Faculty Association broad latitude in its activities, continuing a precedent that permits professional associations to venture beyond their core employment-related purposes. This ruling affects anyone in Canada who must maintain membership in unions or professional organizations.
We wrap up with a constructive dismissal case that seems straight out of a comedy sketch - except it was all too real for the employee involved. A 63-year-old comptroller was given notice of termination but required to keep working for eight months while being gradually replaced by someone actually named "Mr. Bean." Adding insult to injury, the employee was relocated to an interior office without air conditioning (at an air conditioning company!). The court recognized these cumulative actions created an intolerable work environment, awarding 15 months' severance and confirming employers cannot circumvent termination obligations by making work conditions unbearable.
Have questions about how these legal developments might affect you? We'd love to hear your thoughts on these fascinating intersections of law and everyday life. Subscribe to catch our weekly legal insights and join the conversation about how our justice system continues to evolve.
Follow this link for a transcript of the show and links to the cases discussed.
When does a driving mistake become a crime? The latest Court of Appeal ruling tackles this haunting question through the case of a driver who missed a red light, causing a collision that killed an 18-month-old child and seriously injured the father. Despite the devastating outcome, the court upheld the driver's acquittal on dangerous driving charges, drawing a careful distinction between tragedy and criminality.
The case illuminates the legal threshold for dangerous driving in Canada. Unlike provincial traffic violations, criminal dangerous driving requires a "marked departure from the standard of care of a reasonably prudent driver." This distinction carries enormous consequences in BC's no-fault insurance system, where criminal convictions can leave drivers personally liable for millions in damages with no insurance coverage. The ruling affirms that momentary lapses in attention, while potentially catastrophic, don't automatically cross into criminal territory.
Also examined was a fascinating estate case spanning nearly four decades. When a terminally ill woman created her will in 1984, she couldn't have anticipated her modest $50,000 home would be worth $1.2 million by the time her partner died 37 years later. The court had to determine whether her children should receive half the original value or half the current value—ultimately ruling that the original value prevailed. Finally, we explored how "unexplained wealth orders" in civil forfeiture cases can force individuals to account for suspicious assets like million-dollar properties and cash hoards that don't match their declared income.
These cases remind us how legal decisions shape lives in profound ways, whether determining criminal liability for split-second errors, interpreting decades-old intentions, or requiring explanations for suspiciously acquired wealth. Subscribe to our podcast for more insightful legal analysis that makes complex Canadian law accessible and meaningful.
Follow this link for a transcript of the show and links to the cases discussed.
The foundation of property ownership in British Columbia faces a potential earthquake with the landmark Cowichan Tribes decision. After what may be Canada's longest trial—spanning over 500 days—the judge delivered an 800-page ruling that could fundamentally alter who truly owns land throughout the province.
Michael Mulligan breaks down this complex legal battle by explaining the collision between two powerful forces: BC's Torrens property system and Aboriginal title claims under Section 35 of the Constitution. The Torrens system provides what legal experts call "indefeasible title"—conclusive proof of ownership registered with the government that enables secure property transactions and mortgage lending. But the judge has ruled that Aboriginal title is "a prior and senior right to land" that can exist simultaneously with registered property ownership, potentially superseding private property rights despite the Torrens system's guarantees.
The implications are profound. If Aboriginal title claims—which cover virtually the entire province, often with overlapping claims from multiple Indigenous groups—can override registered property ownership, what happens to homeowners who've worked their entire lives to pay for their properties? The economic consequences could be equally severe, as mortgage lending depends on the certainty of ownership. As Mulligan observes, the legal system ultimately depends on public acceptance: "If I tell you that the house you worked for and paid for is no longer yours, I don't know that that's generally going to be accepted." With BC already announcing its intention to appeal, this case will likely progress through higher courts, where judges must balance constitutional obligations to Indigenous peoples with maintaining a functional property system. Listen now to understand what's at stake for every property owner in British Columbia.
Follow this link for a transcript of the show and links to the cases discsused.
A fascinating exploration of justice, liberty, and the limits of government power unfolds through three recent BC legal cases. When a minimum-security prisoner at William Head was caught embracing a senior correctional officer, the warden's decision to transfer him to a higher-security facility backfired spectacularly. The BC Supreme Court ruled the decision "unreasonable," highlighting how even prisoners retain certain liberties that can't be arbitrarily removed. The judge particularly noted the warden's failure to address the significant power imbalance between the inmate and staff member – a consideration that might have led to very different outcomes had gender roles been reversed.
Border security technology stars in our second case, where sophisticated imaging detected 64 kilograms of cocaine hidden in the wall of a semi-trailer truck cab. The driver's claim of being a "blind courier" unraveled when experts testified that the elaborate hidden compartments would have cost upwards of $60,000 and taken weeks to install – an investment no one would make only to hand the vehicle over to an unwitting driver. The case reveals not only the sophisticated methods of drug detection at the border but also provides expert confirmation that cocaine primarily flows northward from Central America through the US into Canada, contradicting certain political narratives about cross-border drug trafficking.
Our final case demonstrates the limits of property rights in Canada as BC mink farmers lost their final appeal against the government's pandemic-era decision to permanently shut down their industry. Unlike the United States, Canada offers significantly less constitutional protection for private property, allowing governments broad regulatory powers without triggering compensation requirements. Whether you're concerned about prisoner rights, border security, or government regulation of business, these cases illuminate the delicate balance between individual liberties and state authority in Canadian society. What other industries might face similar regulatory challenges in the future?
Follow this link for a transcript of the show and links to the cases discussed.
Frustrated by an airline refusing compensation for your delayed flight? You might have more power than you think. Legal expert Michael Mulligan walks us through a fascinating Civil Resolution Tribunal case where passengers successfully challenged WestJet's weather-related excuses and secured $1,000 each in compensation. By gathering evidence showing other airlines operating during the supposedly problematic conditions, these passengers demonstrated how everyday Canadians can effectively navigate the Air Passenger Protection Regulations through BC's accessible online tribunal system.
The conversation shifts to judicial impartiality with a cautionary West Vancouver demolition dispute. When a judge ordered a fire-damaged house demolished, no one realized she had previously advised the municipality on that very case before her appointment to the bench. This oversight led the Court of Appeal to cancel the injunction, highlighting the critical importance of judicial independence and the challenges judges face in identifying conflicts without the robust database systems used by law firms.
Perhaps most eye-opening is the revelation about what your modern vehicle knows and remembers about your driving. Event data recorders in today's cars capture crucial information during accidents - your speed, whether you were wearing a seatbelt, and if you applied the brakes before impact. In a groundbreaking decision, a court determined that this extracted data constitutes a "thing" rather than a "document" under criminal code provisions, requiring police to obtain judicial permission to retain it when no charges have been filed. This legal distinction reinforces important protections against indefinite police retention of digital evidence.
Whether you're planning air travel, wondering about judicial ethics, or simply curious about what your car might reveal after an accident, this discussion offers valuable insights into how our legal system addresses everyday challenges in an increasingly technological world.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when legal formulas, charge approval standards, and competing legitimate needs collide with real human lives? Today's deep dive examines three significant cases that reveal the profound human impact of our justice systems.
The Hockey Canada sexual assault trial verdict brings crucial lessons about the presumption of innocence and the value of detailed judicial reasoning. Unlike jury trials that provide no explanation, this judge-alone trial delivered a comprehensive analysis of why all the accused were acquitted. The judge methodically explained finding the complainant neither credible nor reliable, citing multiple conflicting statements and video evidence contradicting later allegations. This case powerfully demonstrates why we cannot start from assumptions of guilt when allegations are made, regardless of how emotionally charged the circumstances might be.
Meanwhile, a shocking Civil Resolution Tribunal decision exposes the harsh reality of ICBC's no-fault insurance system. A driver suffering permanent vision impairment after being rear-ended received zero compensation because his "floating pink blob" injury—though permanent and debilitating—didn't fit neatly into the mandatory mathematical formula. This case starkly illustrates how dehumanizing rigid regulatory systems can be when they fail to account for individual circumstances. Those ICBC rebates come at a steep cost: significantly diminished rights for accident victims.
Finally, a Songhees Nation land dispute reveals painful competing needs. Elderly mobile home residents face eviction and potential homelessness as the Nation reclaims land to address severe housing shortages for its members. Despite decades of paying property taxes, the court found these residents have no special protections since provincial mobile home regulations don't apply on reserve lands. Both sides have legitimate needs, yet our legal framework offers no elegant solution.
These cases remind us that behind every legal decision are real people facing life-altering consequences. How do we balance competing rights? When should human judgment override mathematical formulas? What protections should our justice systems provide? Listen now to explore these essential questions about justice in our communities.
Follow this link for a transcript of the show and links to the cases discussed.
The boundaries of judicial authority in Canada have been redrawn by a groundbreaking Supreme Court ruling that empowers judges to conduct murder trials without juries—even when prosecutors object. This remarkable case emerged from the early pandemic when COVID-19 made traditional jury trials nearly impossible. A defendant, unwilling to face further delay, requested a judge-alone trial, but prosecutors refused consent. The Supreme Court ultimately sided with the trial judge who proceeded anyway, establishing that protecting a defendant's right to timely justice can override prosecutorial preferences.
This ruling fundamentally reshapes our understanding of what falls within a prosecutor's untouchable "core discretion" versus what judges can override to protect Charter rights. Legal scholars are now watching closely to see how this precedent might extend to other prosecutorial decisions previously considered untouchable.
Property rights received equal attention through a fascinating case where a regional district built what the court bluntly called an "ugly dam" on part of a 157-acre ranch property in the Kootenays. Though only a small portion of land was taken, it transformed a pristine natural lake into an artificial-looking reservoir with an unsightly rocky dam. The court awarded the owner $340,080 in compensation, reinforcing the principle that the government must pay not just for land taken but for how the taking diminishes a property's overall market value.
Most controversial is the Nanaimo murder case, challenging Canada's mandatory 25-year parole ineligibility period for first-degree murder. A man who brutally killed someone with a baseball bat argued that, without the now-eliminated "faint hope clause" (which once allowed parole reviews after 15 years), this sentence constitutes cruel and unusual punishment. Though the judge found the elimination of this clause unconstitutional, the offender still received the full 25-year parole ineligibility due to the brutality of his crime.
These cases collectively demonstrate how our legal system constantly balances competing interests—public safety against individual rights, government needs against property ownership, and societal punishment against constitutional protections against cruelty.
Follow this link for a transcript of the show and links to the cases discussed.
Ever wondered what happens when one party drops 4 million documents on their opponent in a lawsuit? Michael Mulligan explains the fascinating legal concept of an "impermissible document dump" through the lens of a billion-dollar dispute over the North Shore Wastewater Treatment Plant. The case reveals how modern litigation handles vast electronic records and when providing mountains of documents crosses from thorough disclosure to litigation obstruction.
The contrast couldn't be greater when we shift to a dispute over sofa cushions that need "fluffing." When purchasers discovered their $4,400 sofa required constant maintenance despite requesting one that was "solid and not floppy," they sought a full refund seven months later. The judge's decision offers a perfect example of how consumer protection laws balance remedies against practical realities. While the customers couldn't return a seven-month-used sofa for a full refund, they did receive $500 for the "inconvenience and distress" of cushion maintenance – a small but meaningful victory.
Perhaps most illuminating is our examination of what constitutes a "marriage-like relationship" under BC law. When a woman claimed two separate periods of cohabitation (18 months and 22.5 months) should qualify her as a spouse entitled to property division and support, the court had to determine if discontinuous periods could be combined. The judge's 39-page decision dissecting the intimate details of their relationship highlights the challenge of applying family law to complex human connections. The ruling that periods must be continuous serves as a critical warning about the unexpected legal implications of your living arrangements. This case demonstrates why clarity in relationship status matters and raises questions about whether our current approach to defining common-law relationships serves those it aims to protect.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when a sophisticated scammer steals over half a million dollars in Bitcoin through a phone company's security failure? And more importantly, can you even take them to court?
The answer is more complicated than you might think, as we explore in this eye-opening legal examination of consumer rights in the digital age. A British Columbia resident fell victim to an elaborate fraud when someone impersonated a Rogers technician, convinced a retail employee to enable screen sharing, and accessed the Rogers customer database. After extracting personal information, the scammer performed a SIM swap and drained the victim's cryptocurrency account, assets that later appreciated to a staggering one million dollars.
When the victim attempted to sue Rogers, they encountered the hidden trap of arbitration clauses—those pages of legalese we all scroll through and accept without reading when setting up our services. Despite recent changes to BC consumer protection laws specifically banning these clauses, the court ruled in favor of Rogers on a fascinating technicality involving "retroactive" versus "retrospective" legislation. We break down this crucial distinction and explore how legislative language can determine whether consumers have access to justice.
The episode also examines a compelling Vancouver assault case that showcases the notorious unreliability of eyewitness identification. Despite a police officer's "100% certainty" about identifying a suspect from security footage, the court wasn't convinced, particularly when the officer failed to notice the suspect's distinctive "benzo gait," a hunched walking style common among drug users in the Downtown Eastside. This case provides a powerful reminder of why confident witnesses don't necessarily make reliable ones.
Whether you're concerned about protecting your digital assets or fascinated by the evolving landscape of consumer rights, this discussion offers valuable insights into how our legal system struggles to keep pace with technological change. Have you read the fine print in your service agreements? After hearing this, you might want to.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when a child's life depends on a medication that costs nearly a million dollars per year? In this eye-opening conversation with Michael Mulligan of Mulligan Defence Lawyers, we take a deep dive into the tragic case of nine-year-old Charleigh Pollock from Langford, who suffers from the rare genetic disorder Batten disease.
Mulligan walks us through the complex web of legislation governing medication coverage in British Columbia, revealing the stark truth about how these life-or-death decisions are made. Despite common misconceptions about universal healthcare, the reality is that medication funding falls under provincial jurisdiction through the Pharmaceutical Services Act. For expensive drugs treating rare conditions, the process involves a Drug Benefits Council making recommendations, but final decisions rest with government ministers and are primarily financial rather than medical.
The most troubling aspect of Charleigh's case is that she had been receiving the $844,000-per-year treatment for some time before funding was abruptly discontinued. This withdrawal of established treatment raises serious legal questions that distinguish her situation from initial denials of coverage. Mulligan discusses a current groundbreaking case moving through BC courts that might provide a legal pathway forward, exploring potential arguments around negligence, Charter rights regarding cruel and unusual treatment, and judicial review of administrative decisions.
What emerges from this discussion is a sobering reality: when politicians claim they "shouldn't interfere with medical decisions," they're being disingenuous. The system is explicitly designed to make politicians the final arbiters of these treatments after doctors make their recommendations. The criteria for deciding which children receive life-saving medications are, at their core, about money, raising profound questions about how we value human life in our healthcare system. Listen in and consider what changes might be needed to create a more just approach to rare disease treatment in Canada.
Follow this link for a transcript of the show and links to the cases and legislation discussed.
The legal landscape in Canada continues to evolve with significant implications for sexual assault cases, courtroom procedures, and sentencing guidelines.
A groundbreaking Supreme Court of Canada decision has overturned a British Columbia sexual assault conviction in a case where prosecutors introduced evidence about the complainant's sexual inexperience without proper screening. The Court established that "sexual inactivity evidence" – including statements about virginity or lack of sexual interest – must face the same strict admissibility standards as evidence about past sexual activity. This landmark ruling recognizes that just as past consent doesn't imply present consent, past abstinence doesn't imply present non-consent. The decision extends protections against "twin myth reasoning" to both sides of the courtroom, requiring voir dire hearings whenever either Crown or defence wishes to introduce evidence about sexual history or the lack thereof.
Meanwhile, the BC Supreme Court has issued a fascinating new practice direction on witness oaths and affirmations. While the Bible remains available in courtrooms, witnesses wishing to swear upon other religious or cultural items must now bring their own. The directive specifically addresses concerns about ceremonial practices that might compromise courtroom "dignity, decorum and/or safety" – a provision likely influenced by historical oath ceremonies involving chicken beheadings, candle-burning rituals, saucer-smashing, and other culturally-specific practices. This raises profound questions about the continued relevance of religious declarations in modern court proceedings and whether simply affirming to tell the truth might better serve justice.
The courts also clarified the binding nature of joint submissions in a manslaughter case involving a man whose push led to his girlfriend's accidental fatal fall from a cliff. The BC Court of Appeal emphasized that judges cannot "tinker" with sentencing agreements between prosecution and defence unless they would "bring the administration of justice into disrepute." This high threshold protects the plea bargaining system that keeps our courts functioning. These cases collectively demonstrate how Canadian courts continue to balance procedural fairness, cultural sensitivity, and practical administration of justice in an evolving society. Subscribe to hear more analysis of pivotal legal developments that shape our justice system and reflect our changing social values.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when crucial evidence is withheld from the defence in a murder case? The devastating consequences unfolded in a tragic BC case where a woman's life was completely shattered after being wrongfully convicted in connection with a toddler's drowning death.
The Supreme Court of Canada recently ordered an acquittal for a woman who served a year in prison after pleading guilty to criminal negligence causing death. She made this plea without knowing that Crown prosecutors had withheld 140 pages of material questioning the reliability of the medical examiner whose opinions were central to the case against her. The consequences went far beyond her prison sentence—she lost custody of her four children, faced community ostracism, developed drug addiction, and eventually became homeless.
This miscarriage of justice highlights the critical importance of proper evidence disclosure in our legal system. Even the family of the deceased toddler supported the acquittal, recognizing the compounded tragedy when justice fails. Adding a bizarre twist to this case, the Alberta government recently issued an apology to the medical examiner, stating "there have been no miscarriages of justice" connected to his work - apparently contradicting the findings of both the British Columbia Court of Appeal and the Supreme Court of Canada.
In another revealing case, a permanent resident faces deportation after 34 years in Canada due to impaired driving convictions. Despite police violating his rights by video recording him using the toilet in his cell (which the judge acknowledged warranted some sentence reduction), the court declined to artificially lower his sentence below the six-month threshold that triggers deportation proceedings. With 32 driving prohibitions on his record, the judge was "flabbergasted" that the Crown wasn't seeking maximum penalties.
These cases offer crucial warnings: for legal professionals about proper evidence handling, for permanent residents about pursuing citizenship when eligible, and for law enforcement about respecting constitutional rights even when dealing with repeat offenders. When our justice system fails, the human cost can be immeasurable.
Subscribe to hear more stories about the intersection of law, justice, and human lives on Legally Speaking with Michael Mulligan.
Follow this link for a transcript of the show and links to the cases discussed.
Navigating the legal maze of property transactions and civil judgments requires understanding nuances that aren't always obvious. Michael Mulligan, barrister and solicitor with Mulligan Defence Lawyers, unpacks two fascinating cases that illuminate these complexities.
First, Mulligan explores a cautionary tale about what constitutes a "fixture" in home purchases. When buyers discovered a beloved dresser missing after taking possession—revealing holes in the wall behind it—they sued for $7,430 in damages. The case hinged on whether the dresser qualified as a fixture that should remain with the property. The legal test? If an item is attached to the property in a way that removal would cause damage, it's likely a fixture. Those IKEA bookshelves you've secured to walls? They might legally transfer with your home unless specifically excluded in the sale contract.
The same dispute involved "conversation sets" on patios—a vague term that led to confusion when the sellers removed chairs and a large wicker sectional. Despite going to court, the buyers received just $100 for their trouble, demonstrating how ambiguous contract language and litigation costs can result in pyrrhic victories. Mulligan's advice is crystal clear: be specific in contracts about what stays and what goes when selling or buying property.
The conversation shifts to a disturbing case involving a disbarred lawyer convicted of sexually assaulting a potential client in his office. When sued civilly, he claimed any judgment would be pointless as he'd simply declare bankruptcy again. This reveals a common misconception about bankruptcy protection. While bankruptcy can discharge many debts, Section 178 of the Bankruptcy and Insolvency Act specifically excludes sexual assault damages, intentional torts, fraud, and court fines from discharge. The $270,000 judgment against him would survive bankruptcy—though collecting from someone without assets remains challenging regardless.
These cases illustrate critical principles: precise language prevents expensive disputes, bankruptcy won't erase obligations from intentional wrongdoing, and winning a judgment doesn't guarantee collection. Whether you're buying a home or seeking justice through civil courts, understanding these legal realities can save you significant time, money, and heartache.
Follow this link for a transcript of the show and links to the cases discussed.
Ever wondered if your dog could land you in legal hot water? Or what happens when your neighbour's business becomes an unbearable nuisance? Legal expert Michael Mulligan returns to Legally Speaking with three captivating cases that reveal the fascinating intersection of everyday life and Canadian law.
The spotlight first falls on Juliet, a miniature Australian shepherd whose elevator encounter led to a $4,800 claim after she allegedly bit a woman's hand. Mulligan unpacks the surprising legal doctrine that essentially gives dogs "one free bite" before owners face liability. The Civil Resolution Tribunal's dismissal of the case highlights the important distinction between a single incident and established patterns of behaviour in animal liability cases. Dog owners across British Columbia might breathe easier knowing that, without prior knowledge of aggressive tendencies, they're unlikely to face legal consequences for an otherwise well-behaved pet's first transgression.
Things heat up with the case of a small-town gas station that found itself embroiled in a 20-day trial complete with acoustics and vapour experts. When the station relocated its underground tanks, neighbouring residents endured years of noise, fumes, and bright lights from fuel deliveries. Though the court acknowledged these disturbances constituted a legal nuisance, it rejected demands to shut down operations. Instead, the judge awarded $80,000 to the affected family, demonstrating how Canadian courts balance individual property rights against broader community needs. The Court of Appeal's affirmation of this approach reveals the remarkable discretion judges maintain when crafting remedies that serve competing interests.
The final case delivers a cautionary tale featuring a BC Housing tenant known variously as "Lover-Peace" and "Emotions Universe," whose troublesome behaviour resulted in his designation as a "vexatious litigant." After breaching an agreement to vacate public housing in exchange for rental supplements, his attempt to appeal his eviction order led to a full-day hearing where his pattern of harassing behaviour toward legal professionals came to light. The $2,500 special costs penalty imposed sends a clear message about the consequences of abusing the legal system.
Want to explore more fascinating intersections of law and everyday life? Join us next week for another edition of Legally Speaking, where Michael Mulligan continues to demystify Canadian jurisprudence one compelling case at a time.
Follow this link for a transcript of the show and links to the cases discussed.
The BC Court of Appeal has delivered a significant ruling that serves as a stark warning to property sellers: crossing out questions on disclosure forms doesn't eliminate your responsibility to be truthful. When a seller drew lines through all disclosure questions, writing only that the property was tenant-occupied and he'd never lived there, he created a legal nightmare for himself. After discovering an unpermitted addition, the buyer backed out – but the seller kept the $300,000 deposit and sued for more. Though initially successful, the Court of Appeal reversed the decision, finding the seller knew about the problem and his line-crossing technique didn't absolve him of responsibility.
The case highlights a critical point for anyone engaging in real estate transactions: disclosure forms are binding components of your contract. If you choose to complete one, everything you state (or strategically avoid stating) can have serious financial consequences. Sellers must either be meticulously accurate or explicitly mark properties as sold "as is" with no representations or warranties.
In a separate ruling that exposes the troubling state of Indigenous child welfare, the Court restored a $150,000 human rights award to a First Nations mother who successfully proved discrimination by an Indigenous child protection agency. The statistics remain deeply concerning – Indigenous children represent a staggering 68% of those in government care despite comprising just 6% of BC's population. The case offers a glimpse into a system still struggling with its approach to Indigenous families.
These rulings demonstrate how the courts continue to shape responsibilities in property transactions and protect human rights in child welfare matters. Whether you're buying, selling, or navigating family services, understanding these legal precedents could save you from costly mistakes or help you assert your rights when systems fail.
Follow this link for a transcript of the show and links to the cases discussed.
What does it take to sentence a dog to death? Far less than you might think. In our latest deep dive into fascinating legal territory, we explore a heartbreaking case from Kamloops where a pit bull named Ferb faced the ultimate penalty under BC's dangerous dog laws.
The story weaves through a tragic background - Ferb, stabbed five times as a puppy before being rescued, later found himself implicated in the killing of a neighbour's collie. What makes this case particularly compelling is how it illuminates the stark difference between animal and human justice systems. While humans receive the protection of "beyond a reasonable doubt," Ferb's life hung on the much lower "balance of probabilities" standard. Through expert testimony on pack mentality and circumstantial evidence, the court determined Ferb's fate in a process that raises profound questions about how we balance public safety against animal welfare.
We also unpack a creative but unsuccessful class action against ICBC that claimed drivers were overcharged for cross-border liability insurance during COVID travel restrictions. The case's dismissal reveals the complex regulatory framework governing insurance rates and the limited recourse available to consumers who feel they've paid for services they couldn't legally use. Finally, we examine a fascinating business dispute involving proprietary nasal spray technology that demonstrates unique aspects of injunctive relief when enforcing negative covenants. Together, these cases paint a vivid picture of our legal system's intricate balance of competing interests and the frameworks created to resolve conflicts across vastly different contexts.
Follow this link for a transcript of the show and links to the cases discussed.
The complex legal landscape of vicarious liability takes center stage in this illuminating discussion with Lawyer Michael Mulligan. At the heart of our conversation is a heartbreaking Victoria case where a retired teacher-turned-tutor sexually abused a grade six student, resulting in a $2.3 million judgment. We dissect the Court of Appeal's reasoning on why, despite creating the initial relationship, the school board wasn't held vicariously liable for the teacher's actions that occurred after retirement and away from school grounds.
The legal principle at stake here affects countless institutions across Canada. While the abuse would never have occurred without the school's arrangement, the court determined this causal connection alone wasn't enough to establish liability. Tragically, with the perpetrator deceased, the victim's substantial judgment may go largely uncollected, demonstrating how technical legal distinctions can profoundly impact survivors' ability to receive compensation.
We also examine two other rulings with everyday implications for Canadians. If you've ever missed your traffic court date due to illness, take note: the BC Supreme Court has confirmed doctor's notes aren't mandatory for appeals. Alternative evidence, like medication receipts or witness affidavits, can suffice – a welcome clarification that removes unnecessary barriers to justice.
Looking toward our digital future, we analyze a split Supreme Court of Canada decision determining that 5G antennas don't qualify as "transmission lines" under telecommunications regulations. This seemingly technical ruling means telecom giants must now negotiate with individual municipalities to install the hundreds of thousands of small antennas needed for nationwide 5G coverage, potentially affecting the rollout of next-generation wireless technology in your neighbourhood.
Have you encountered any of these legal issues? These cases highlight how judicial interpretations directly affect everything from institutional accountability to your traffic ticket disputes and even your cell phone reception.
Follow this link for a transcript of the show and links to the cases discussed.
Navigating mental health crises poses profound challenges for families watching loved ones deteriorate without effective intervention options. This episode sheds light on a powerful yet underutilized legal tool - Section 28 of BC's Mental Health Act, which allows family members and concerned individuals to apply directly for a "warrant of apprehension" when someone exhibits dangerous mental health symptoms.
A recent Colwood court judgment outlines exactly how this process works, revealing that applications have increased significantly recently. The warrant enables initial 48-hour detention for proper assessment when someone displays behaviour indicating they may harm themselves or others. We dissect the legal criteria judges consider: reasonable belief in mental disorder, need for treatment, purpose of protection, and inability to proceed voluntarily. This mechanism empowers families who previously felt helpless, though its effectiveness ultimately depends on available treatment facilities and mental health resources.
We also examine two significant Court of Appeal decisions with far-reaching implications. First, a dangerous offender designation was upheld for an individual with decades of sexual offending against young boys, illustrating how the justice system handles those deemed to present an unmanageable risk to society. Second, a class action lawsuit against WestJet regarding passengers with disabilities who require multiple seats can proceed despite jurisdictional questions between federal transportation regulations and provincial discrimination laws. This fascinating exploration of "paramountcy" shows how courts attempt to harmonize seemingly conflicting legislation rather than automatically favouring federal authority. Have you encountered situations where knowledge of these legal mechanisms might have helped someone you know? We'd appreciate hearing your experiences.
Follow this link for a transcript of the show and links to the cases discussed.
Privacy rights take center stage as the BC Court of Appeal delivers a powerful message to organizations handling sensitive information. When an ICBC employee sold policyholder data to criminal organizations, resulting in targeted arson and shooting attacks against numerous victims, the insurance giant fought tooth and nail to minimize compensation. The Court ultimately upheld a $15,000 award for each affected individual, establishing a crucial precedent that privacy violations cause significant harm even without visible damage.
The ruling recognizes that having your personal details sold to criminals creates genuine suffering, even when physical attacks don't materialize. This landmark decision enforces the principle that employers bear responsibility for their employees' actions when handling sensitive data. For anyone concerned about their digital privacy, this case represents a significant step toward protecting personal information in an increasingly connected world.
Meanwhile, the courts navigate the complex territory where art meets evidence. A murder trial in Surrey broke new ground by allowing expert testimony on drill rap—a subgenre where violent lyrics are often performative rather than autobiographical. The defence successfully argued that without understanding this cultural context, jurors might mistakenly interpret rap about violence as literal confessions. This raises fascinating questions about how we evaluate artistic expression in criminal proceedings and acknowledges potential racial biases in interpreting such content.
In Victoria, justice persisted despite a defendant's violent refusal to participate in his own trial. Charged with beating someone with their own wheelchair during a robbery, the accused fought with sheriffs and refused to enter the courtroom. The judge's ruling that this behaviour constituted "absconding" demonstrates how our legal system adapts to maintain functionality even when faced with extreme disruption.
These cases highlight how Canadian courts are evolving to address modern challenges while upholding fundamental principles of justice. Have you ever wondered how much your privacy is actually worth in the eyes of the law? This week's developments provide some compelling answers.
Follow this link for a transcript of the show and links to the cases discussed.
The boundaries between student life and financial freedom come under scrutiny in this fascinating examination of a groundbreaking Supreme Court of Canada decision. When does your status as a "student" truly end? According to Canada's highest court, returning to school—even part-time and self-funded—resets the seven-year countdown clock that protects government student loans from bankruptcy proceedings.
Through a split 6-3 decision, the court delves into the subtle nuances of legal language, including how the French version of Canadian law influenced their interpretation. The case presents a sobering reality for those hoping to discharge student debt through bankruptcy: even brief returns to education could extend the period during which these loans remain protected, regardless of how many years have passed since the original borrowing.
We also explore a high-profile Victoria murder case appeal that examines the legal distinction between different paths to first-degree murder charges. The court's analysis reveals how planning and deliberation carry a different standard of participation than murders committed during other serious offences like forcible confinement—a nuanced difference that upheld the conviction in this tragic case, where two escaped prisoners killed a man in his own home.
The conversation concludes with an examination of what legally constitutes a "firearm" under Canadian law, determining that a handgun tested without its original magazine still qualifies as a firearm if it can function with alternative components. This technical but significant ruling emphasizes a weapon's capability over its specific configuration at the time of seizure.
These cases collectively illuminate how judicial interpretation of seemingly straightforward legal language can profoundly impact real lives, whether determining the dischargeability of student debt, the severity of murder charges, or what constitutes a regulated weapon. Subscribe to hear more analyses of how the law affects everyday Canadians in unexpected ways.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when someone experiencing a psychotic episode intentionally crashes into a motorcyclist they believe is a "demon"? This fascinating exploration of mental illness and legal liability takes us through a landmark BC case that transforms how we understand responsibility when reality breaks down.
The distinction between criminal and civil liability becomes crucial as we follow the story of a man with no prior psychiatric history who suffered a complete psychotic break in 2018. While criminal law might find him not responsible due to mental disorder, civil law focuses on compensation rather than punishment. The judge's nuanced approach reveals how liability extends beyond just the final moment of incapacity—examining the gradual deterioration that preceded the collision provides vital context for understanding accountability.
This case carries profound implications for anyone interested in mental health advocacy, legal rights, and public safety. The court's finding of both negligence and battery resulted in a substantial award to the injured voice actor while also creating complex insurance issues since intentional acts typically aren't covered by policies. Perhaps most strikingly, the vehicle owner—the driver's then-girlfriend—was also held liable despite her desperate attempts to prevent him from driving once she realized his condition.
We also delve into a separate but equally compelling case involving a Green Party deputy leader whose sentence for criminal contempt was reduced on appeal due to a misapplication of the "step-up principle." This illuminating example shows how judicial sentencing is constrained by legal principles that ensure proportionality and fairness rather than simply escalating punishments for repeated offences.
Whether you're a legal professional, mental health advocate, or simply curious about how our justice system navigates these complex intersections, this episode offers valuable insights into how responsibility, compensation, and accountability function when mental capacity is compromised. Share your thoughts on these rulings and join the conversation about where personal responsibility begins and ends.
Follow this link for a transcript of the show and links to the cases discussed.
The complex interplay between law, morality, and human tragedy takes center stage in our latest episode examining three compelling legal cases that highlight how our justice system navigates competing interests.
We begin by exploring the "rescuer doctrine" - a legal principle establishing that if someone's negligence creates a dangerous situation, they can be liable for injuries sustained by those who attempt to help. This emerged in a heartrending case involving a woman who rushed to save a person whose wheelchair became stuck on railway tracks as a train approached. Despite her heroic efforts, she couldn't free the wheelchair in time, resulting in the death of the wheelchair user and injuries to herself. The railway company's attempts to avoid a jury trial were rejected by the judge, allowing this sympathetic rescuer to have her day in court.
The tension between access to justice and financial realities takes shape in our second case, where a woman with limited means sought to appeal the dismissal of her medical malpractice claim. When the doctor requested she provide $5,000 security for potential legal costs, the court faced a dilemma: demanding full security might deny her right to appeal, while waiving it entirely would unfairly burden the doctor with legal expenses for what appeared to be a weak claim. The Court of Appeal struck a compromise, requiring just $1,000 security and extending the payment deadline - demonstrating how judges must sometimes find middle ground when principles collide.
Finally, we delve into the emotionally charged issue of faith-based hospitals refusing to provide medical assistance in dying. When a terminal cancer patient had to be transferred from St. Paul's Hospital for MAID services, causing her additional suffering, it sparked litigation questioning whether religious exemptions can override patient rights. The case has attracted numerous interveners representing various perspectives, revealing how our courts manage cases with broad societal implications.
Have you encountered situations where competing rights created difficult legal questions? Share your thoughts and join our conversation about how the justice system balances competing interests.
Follow this link for a transcript of the show and links to the cases discussed.
Premier David Eby's partial retreat on the Economic Stabilization Tariff Response Act marks a significant moment in BC's response to US tariff threats. While the government has agreed to remove Part 4 of Bill 7—the section granting powers to amend legislation without parliamentary approval—legal expert Michael Mulligan reveals why serious concerns remain.
The bill still contains provisions allowing the government to unilaterally cancel contracts, change procurement practices, and impose taxes without legislative debate. Particularly troubling is language that prevents affected parties from seeking judicial review of government actions—a fundamental protection in democratic systems. "Protection against legal proceedings" suggests the government wants to shield itself from court challenges, raising serious questions about accountability.
Mulligan's analysis cuts to the heart of democratic governance: should we empower executives with unilateral authority, even during international disputes? He draws a striking parallel between the chaos of Trump's tariff decisions and the risks of BC's proposed response: "Left-wing populism is not a good response to right-wing populism." The comparison to Ontario Premier Doug Ford's hasty electricity tariff—quickly announced, then withdrawn—serves as a cautionary tale about reactive governance without deliberation.
The remaining sections of Bill 7 grant more extensive powers than were used during the COVID-19 pandemic, despite facing only economic threats rather than a public health emergency. As Mulligan notes, "We are not at war with the United States." Want to understand the delicate balance between government authority and democratic safeguards? Listen to this essential breakdown of how emergency powers can fundamentally reshape governance when we're not looking closely enough.
Follow this link for links to the legislation discussed.
The latest Legally Speaking segment with Michael Mulligan takes listeners on a fascinating journey through British Columbia's alternative dispute resolution landscape, revealing both promising innovations and concerning pitfalls in our justice system.
The conversation begins with an extraordinary Civil Resolution Tribunal case in which a woman abandoned $95,000 of her $100,000 claim to proceed in a forum designed for minor disputes—only to lose everything. This cautionary tale illustrates the critical importance of forum selection and the permanent consequences of claim abandonment. Mulligan explains how the tribunal determined responsibility in a sophisticated WhatsApp fraud case, applying the principle of "who most enabled the third-party fraud" to conclude that ignoring explicit financial institution warnings proved fatal to the claim.
Equally compelling is the examination of a Vancouver tenant's fight for $82,380 in compensation (twelve months' rent) from a landlord alleged to have never moved into a property after eviction. This high-stakes dispute raises constitutional questions about provincial tribunal jurisdiction while highlighting fundamental procedural fairness requirements that cannot be circumvented. When an adjudicator dismissed a key witness, imposed arbitrary time limits of just minutes for closing arguments, and failed to provide adequate hearing time, the Supreme Court intervened despite high thresholds for judicial review.
These cases reveal the complex tensions within our legal system as it attempts to balance accessibility, efficiency, and fundamental fairness. Mulligan's expert analysis shows how legislative interventions in contractual relationships, particularly between landlords and tenants, have created increasingly fractured relationships, leading to novel litigation that tests the boundaries of our justice system.
Ready to learn more about navigating legal disputes effectively? Subscribe to catch future episodes of Legally Speaking with Michael Mulligan, where complex legal concepts become accessible wisdom you can use to protect yourself in an increasingly complicated world.
Follow this link for a transcript of the show and links to the cases discussed.
Democracy stands at a crossroads in British Columbia as Michael Mulligan delivers a powerful analysis of the NDP's proposed Tariff Response Act (Bill C-7). Drawing on historical parallels that send shivers down the spine, Mulligan unpacks how this legislation bears troubling similarities to Nazi Germany's 1933 Enabling Act—legislation that effectively rendered their legislature irrelevant and set the stage for catastrophe.
The bill's provisions would allow the government to make retroactive amendments to laws, shield officials from judicial review for procurement decisions, and potentially criminalize non-compliance with up to two years imprisonment. Most alarming is how the exclusion of the Offense Act creates a backdoor to criminal prosecution under Section 127 of the Criminal Code—potentially criminalizing actions that weren't illegal when performed. "The response to right-wing populism and erratic behaviour ought not to be a populist, left-wing, arbitrary response," Mulligan warns, as he urges Green Party MLAs who hold the balance of power to consider the weight of history before supporting such a transfer of power.
In the second segment, Mulligan discusses a recent Victoria case with significant implications for homeowners and contractors. The court ruled that consumers can cancel construction contracts lacking specific completion dates within 12 months under the BC Business Practices and Consumer Protection Act. When a sunroom company demanded an additional $17,310 and dumped materials "the size of a small car" in a homeowner's driveway after cancellation, the judge ordered a full refund plus damages for trespass. Take note whether you're planning renovations or providing services—completion dates aren't just good business practice; they're legally required. Have you checked your contracts lately?
Follow this link for a transcript of the show and links to the cases discussed.
A Canadian adult entertainment company faces an $850,000 fine after Health Canada's undercover operation exposed a lucrative scheme selling "natural health products" that secretly contained prescription medication. Michael Mulligan walks us through how MFH International Enterprises marketed pills called "Harmony" and "Passion Femme" as herbal alternatives while charging premium prices of nearly $140 for just 10 tablets. Health Canada's testing revealed these products contained triple doses of erectile dysfunction medications - putting unwitting consumers at serious risk, especially those with heart conditions.
The case raises alarming questions about consumer safety in the natural health product market. As Mulligan points out, "Not everything natural is necessarily good for you," noting that even legitimately natural ingredients with exotic names like "horny goat weed" and "tomcat" deserve scrutiny. The court's substantial fine was carefully calculated to exceed the company's profits while remaining collectible over five years - though Mulligan questions whether corporate shell games might ultimately prevent full payment.
The episode also examines a sobering reality about Canada's "not criminally responsible" verdicts. A man found NCR in 2012 for criminal harassment and uttering threats - offences that typically wouldn't result in lengthy prison terms - has now spent twelve years under involuntary psychiatric detention. His case starkly illustrates how NCR findings can lead to indefinite confinement rather than the "get out of jail free card" commonly assumed by the public.
Closing with an analysis of British Columbia's proposed Economic Stabilization Act, Mulligan warns about delegating sweeping regulatory powers that bypass legislative debate. The bill would allow the government to rapidly impose tolls, fees, and restrictions through regulation alone - potentially creating chaotic policy shifts similar to what we've seen with international tariffs. While quick responses to economic challenges are appealing, Mulligan cautions that such broad authority demands careful consideration: "We should slow down... if you grant sweeping powers to do things which could seriously impact people's lives and livelihoods, sometimes you're going to cause serious harm."
Note: Legally Speaking With Michael Mulligan is now live on CFAX 1070 at 12:30 pm rather than 10:30 am every Thursday.
Follow this link for a transcript of the show and links to the cases discussed.
The spectre of trade wars looms as social media announced tariffs threaten to disrupt the Canada-US relationship, but a powerful alternative to the traditional tit-for-tat approach exists. Rather than punishing ourselves with counter-tariffs that make goods more expensive for Canadians, we could follow Brazil's remarkably successful strategy from 2010.
When faced with harmful US cotton subsidies, Brazil obtained WTO approval to suspend American intellectual property protections on pharmaceuticals, chemicals, and entertainment. The threat alone was so effective that the US capitulated, passing corrective legislation and paying compensation. This approach targeted America's post-industrial economy, where true value lies not in manufacturing but in patents, copyrights, and intellectual property.
Looking at our trade history, intellectual property protection forms the cornerstone of agreements from NAFTA to the 2020 USMCA. These agreements dramatically restricted Canada's generic drug industry, extended copyright terms to 75+ years, protected US semiconductor designs, and created digital IP frameworks that primarily benefit American companies. Since these protections exist because of the very agreements being violated through tariff threats, suspending them represents a logical and asymmetrical response.
The beauty of this approach is its win-win nature for Canada – consumers would save substantially on medications, technology, and entertainment while applying maximum pressure to US interests. When auto executives warned of catastrophic consequences from parts tariffs, Trump backed down within 24 hours. Imagine the lobbying pressure from every pharmaceutical, technology, and entertainment giant facing the loss of their international intellectual property protections. As our legal expert notes, this approach has proven effectiveness has legal standing through WTO processes, and would target "most of the US economy" – making it a strategic option Canada shouldn't overlook as trade tensions escalate.
Follow this link for a transcript of the show and links to the cases discussed.
Explore the intricate landscape of Canadian immigration law with us in this episode, where we unravel the surprising realities that can lead to deportation for long-term residents. Our primary focus is a captivating case involving a UK citizen who, after living in Canada for over 70 years, finds himself facing deportation due to organized criminality. The conversation sheds light on the legal definitions that can suddenly place an individual at risk, even for what may seem minor infractions.
Additionally, a heart-wrenching tale on an exploding stove illustrates the challenges individuals face within civil legal systems, highlighting the importance and protection that jury trials provide in civil matters.
As we continue our discussion, we touch on the implications of harsh pre-trial conditions, showing how they may alter parole eligibility for those convicted of murder. Listeners are encouraged to consider the broader context of these legal decisions and how they intersect with mental health and personal histories. This rich dialogue not only educates about the law but also reflects wider societal values and challenges.
Join us in this compelling conversation that not only informs but also provokes critical thinking on justice, fairness, and the legal hurdles many immigrants face. Don’t miss out—subscribe, leave a review, and share your thoughts with us!
Follow this link for a transcript of the show and links to the cases discussed.
What legal responsibilities do towns have when a simple stroll through a park turns tragic? Join us as we sit down with Michael Mulligan to uncover the layers of liability and negligence that come into play when public spaces fail to safeguard their visitors. Through the lens of a heart-wrenching case involving a young boy in Gibsons who became tetraplegic after a dead tree fell on him, we explore the critical question of whether the town fulfilled its duty of care under the Occupiers Liability Act. Michael helps us dissect the legal obligations and expectations placed on municipalities to ensure safety, including how standards like the Wildlife Danger Tree Assessors course influence these responsibilities.
Pivoting to the realm of marine life, we navigate the murky waters of marine mammal regulations with a keen eye on a legal case that raises questions about the fairness of prosecution. When a woman was accused of disturbing killer whales while paddleboarding, it highlighted the labyrinth of modern legal statutes that can ensnare even the most well-meaning individuals. Michael guides us through this legal conundrum, addressing the principle that ignorance is no defence and the peculiar world of licensing fees for hunting marine mammals. We spotlight the legal processes, from evidence handling to upholding an individual's right to a fair trial, ensuring that justice remains not just a concept but a reality.
Follow this link for a transcript of the show and links to the cases discussed.
Unlock the secrets to challenging traffic citations and safeguarding your inheritance as we dissect intriguing legal scenarios from British Columbia. Ever wondered about the complexities behind those speed signs in construction zones? Discover how questioning their validity can shift the burden onto the Crown and how this impacts unsuspecting drivers. We'll shine a light on the legal presumptions that surround highway signage and discuss a recent case that brings these issues to the forefront, revealing the puzzling maze drivers might face when confronted with misleading or improperly erected signs.
On a different note, we venture into the delicate balance of family obligations and government policy through the lens of a thought-provoking case involving a Henson Trust. What happens when a woman seeks to protect her $1.8 million inheritance while ensuring her eligibility for government benefits? Hear the compelling arguments and judicial decisions that question societal norms about wealth and public resource accessibility. Plus, we're joined by Michael Mulligan from Mulligan Defence Lawyers, who shares his expert legal insights, helping you navigate the complexities of these fascinating cases. Don't miss this opportunity to gain valuable perspectives from an experienced legal mind.
Follow this link for a transcript of the show and links to the cases discussed.
Prepare to challenge your understanding of Canadian law with our guest, Michael Mulligan, as we unravel three pivotal legal cases making headlines in British Columbia. First, we dissect a bold ruling where a BC judge declared the 25-year parole ineligibility for first-degree murder unconstitutional. This decision could transform the legal landscape, questioning whether longstanding standards align with modern constitutional rights. We explore the historical precedents, including the Supreme Court of Canada's 1990 Luxton decision, and consider the implications of evolving legal interpretations on future cases.
Switching gears, we uncover the curious dismissal of a case due to a no-show Crown prosecutor, illustrating the intricate dance of jurisdiction between the BC Supreme Court and BC Provincial Court. With procedural nuances in the spotlight, we discuss historical instances like a Crown Counsel strike, shedding light on the complexities of prosecution duties. Lastly, we navigate through the latest developments in a class action lawsuit against HSBC, where allegations of mutual fund misrepresentation have sparked claims of unjust enrichment. Learn the crucial differences between actively and passively managed funds and why these distinctions matter to investors seeking value for their money. This episode promises a deep dive into the dynamic interplay of law and current events, offering insights that are both enlightening and thought-provoking.
Follow this link for a transcript of the show and links to the cases discussed.
What if one impulsive moment could change a murder charge to manslaughter? Understanding the intricate nuances of Canadian law, we unpack the legal concept of provocation, especially its role in the justice system. Explore the far-reaching implications of the 2015 amendments under the Zero Tolerance for Barbaric Cultural Practices Act and the constitutional debates they spark. Discover a recent BC Court of Appeal case where a husband, embroiled in a complex narrative of alleged long-term abuse, challenges the application of these laws amidst claims of provocation.
Tackle the vital theme of reputation and justice through a defamation case from Nanaimo, where false accusations against a city employee lead to a legal showdown. With insights from Michael Mulligan of Mulligan Defence Lawyers, we also scrutinize the Crown’s disclosure obligations in criminal cases. Mulligan sheds light on the crucial responsibility to ensure fair trials by disclosing all pertinent information, even from different investigations. Join us for an enlightening discussion on these pressing legal issues, revealing their real-world impact and challenges.
Follow this link for a transcript of the show and links to the cases discussed.
Imagine being penalized for a simple screen touch while trying to make a living. Michael Mulligan of Mulligan Defence Lawyers joins us to unravel the outdated distracted driving laws that put gig economy drivers in a bind. Our conversation sheds light on how these regulations, which only permit screen interactions for phone calls, fail to consider today's work environment for gig workers like Uber Eats drivers. We highlight a noteworthy case where a driver was convicted for accepting a delivery, underscoring the urgent need for legislative reform. You'll also hear about some amusing quirks in the law, like the allowances for CB radio microphones, which highlight the disconnect between current laws and modern work practices.
Switching focus to international trade, we explore the strategic dimensions of Canada's Digital Services Tax Act. This 3% levy on Canadian revenues of major US tech firms, such as Facebook and Amazon, is not just a tax—it's a diplomatic tool. We examine how this legislation fits into the larger geopolitical puzzle, especially in light of past US tariff threats. Conversations veer into the fascinating implications of raising the tax rate, arguing that these companies could still find profitability despite a higher levy. Moreover, we look at how other nations might follow suit, using similar measures to navigate trade tensions with the United States.
Follow this link for a transcript of the show and links to the cases discussed.
Unlock the hidden power of intellectual property in global trade as we explore Canada's strategic maneuvers against US policies. Instead of traditional tariffs, imagine the impact of restricting US intellectual property rights on Canadian soil. Get ready to dissect a thrilling legal case over a $2 million lottery ticket—is it a solo jackpot or a group windfall? We unravel the details, from the tangled web of evidence to the burden of proof that could make or break the case.
But the intrigue doesn't stop there. Brace yourself for the shocking story of a woman masquerading as a nurse in British Columbia, jeopardizing public trust with her deceitful actions. We'll navigate the legal complexities of her sentencing and the broader implications for the healthcare system. Plus, Michael Mulligan from Mulligan Defense Lawyers joins us to shed light on a school embroiled in a legal battle over a weed gummy incident, offering insights into the delicate handling of the situation. This episode promises a gripping journey through the multifaceted world of law and its profound consequences.
Follow this link for a transcript of the show and links to the cases discussed.
The episode dives into the intriguing dynamics between the United States and Canada, particularly surrounding trade and intellectual property (IP). As US President Donald Trump threatened tariffs on Canadian goods, a discussion emerged on how Canada could respond strategically. The central theme revolves around the underappreciated power of intellectual property as a bargaining chip in trade negotiations, particularly for a smaller nation like Canada. Michael Mulligan, a Barrister with Mulligan Defence Lawyers, emphasized that tariffs, often seen as the primary retaliatory measure, could ultimately harm Canadian consumers more than US producers.
Understanding the intricate mechanisms of tariffs is key to grasping the broader consequences they can have on the economy. For instance, imposing a tariff on imported orange juice or motorcycles from the US would lead to inflated prices for Canadian consumers, while the US would experience only a minor economic sting. Thus, the discussion shifted toward a more sophisticated method of retaliation, focusing on IP laws established followin the North American Free Trade Agreement (NAFTA) and its successor, the United States-Mexico-Canada Agreement (USMCA). Mulligan pointed out that the core of US-Canada trade discussions for many years has centred on IP protections, effectively making them a focal point of economic dependence.
Mulligan explored real-world examples from Brazil and Antigua, which successfully leveraged their own IP protections in previous trade disputes with the US. Brazil’s complaint regarding US cotton subsidies led to the approved threat of revoking US IP protections, which ultimately resulted in the US conceding to pay Brazil $130 million per year. Similarly, Antigua exploited online gambling disputes with the US, illustrating how the threat of losing IP protection led to fruitful negotiations. This approach illustrates how Canada might consider the strategic use of IP law to apply pressure on the US, particularly given the reliance of many American industries on these legal protections.
The latter part of the episode transitioned dramatically into a more sombre topic: a first-degree murder case in Nanaimo. The gruesome details of the crime revealed a complex tapestry of intimate partner violence and the psychological implications associated with it. Michael discussed how the defendant’s appeal to self-defence was complicated by the admissibility of expert evidence related to intimate partner violence. The case set off a significant dialogue about the complexities of legal definitions surrounding self-defence and the importance of integrating expert insights into judicial proceedings.
The legal intricacies presented in the murder case add depth to the episode. The issue of admitting expert evidence played a crucial role, with the judge having to determine if the proposed testimony would be more prejudicial than probative. Mulligan explained that understanding the nuances of intimate partner violence can be vital to a fair trial, as conventional wisdom often fails to capture the complex emotional and psychological realities victims face. The juxtaposition of trade strategies and legal defences in murder cases provides a compelling lens through which to understand both the legal landscape and the very human stories behind it.
Ultimately, this podcast episode not only sheds light on the legal frameworks governing trade but also emphasizes the ethical responsibilities of the legal system to understand and acknowledge trauma in criminal cases. It stands as a poignant reminder of how law intersects with both international affairs and personal struggles, illustrating the multifaceted nature of legal advocacy today.
Follow this link for a transcript of the show and links to the cases discussed.
Can a province truly bypass judicial processes in the name of housing development? Join us as we tackle this question with Michael Mulligan of Mulligan Defence Lawyers, providing his expert insights into a legal storm brewing over a proposed 12-story housing project in Vancouver's Kitsilano neighbourhood. This episode uncovers constitutional tensions as the provincial government attempts to circumvent judicial review, sparking a broader discussion about the limits of provincial power and the essential role of superior courts as outlined in section 96 of the Constitution Act 1867. Listen closely as we dissect the court's stance on rezoning requirements and the implications for due process.
In another compelling narrative, we follow the legal fight for a young woman in foster care, spotlighting her struggle for adequate lifelong support against the backdrop of government-imposed financial caps. Delve into the province's contentious plan to offset compensation with potential aid from Community Living BC. At the same time, we introduce the novel "Peter's Promise" concept from the UK that challenges conventional compensation frameworks. Through this analysis, we emphasize the dignity and autonomy of individuals affected by legal decisions whilst navigating the uncertainties of relying on government support. Michael Mulligan's expertise brings clarity to these intricate issues, making this episode a must-listen for anyone interested in the dynamic interplay between law, community, and individual rights.
Follow this link for a transcript of the show and links to the cases discussed.
Our conversation begins with a deep dive into the charge approval process for sexual assault, where we illuminate the nuances between the standards required for police arrests and those for Crown charge approvals. We tackle the challenge of relying solely on the versions of events provided by complaints due to the lack of independent witnesses or forensic evidence. Through a discussion on trauma-informed interviewing, we ponder its potential impact on case outcomes and highlight the importance of maintaining fairness by not labelling complainants as victims before trial proceedings.
In the second half of the show, we tackle the sobering realities of hit-and-run cases. We explore an ICBC claim following a hit-and-run accident in Vancouver, emphasizing the importance of promptly and actively pursuing insurance coverage by identifying at-fault drivers rather than relying entirely on police investigations. To enrich this discussion, we welcome Michael Mulligan of Mulligan Defence Lawyers for his regular Legally Speaking segment, where he offers invaluable legal insights and expertise. Join us as we navigate these legal intricacies, offering you a rich understanding of the processes and implications at stake.
Follow this link for a transcript of the show and links to the cases discussed.
Why did former Constable Ferris' questionable actions lead to a legal overturning of drug convictions, and what role did an inadequate defence play in this dramatic courtroom saga? Join us as we promise to unravel the complexities of police misconduct, discredited testimonies, and the impact of mental health on legal defence. With Michael Mulligan of Mulligan Defence Lawyers as our guide, we navigate through a case that underscores how fragile justice can be, hinging on the integrity of evidence and the robustness of representation. This is more than just a legal story—it's a reflection on trust in law enforcement and the resilience of the appeals process.
We also explore a tangled web of inheritance and relationship status with profound implications for estate distribution. Was Sharon and Dick's companionship truly marriage-like, and how does this affect the legacy left behind? Michael Mulligan helps us dissect the judge’s decision, which drew from intimate accounts of the couple’s shared experiences rather than family skepticism. This episode highlights the critical need for clarity in wills, as we confront issues of spoliation and sibling contestation. Prepare for an engaging discussion that lays bare the subtle intricacies of human relationships and their legal ramifications.
Follow this link for a transcript of the show and links to the cases discussed.
Michael Mulligan from Mulligan Defence Lawyers joins us to untangle the intricate web of legal challenges sparked by personal entanglements within the courtroom. Imagine a scenario where a defence counsel's paralegal is romantically involved with the Crown counsel during a sexual assault trial. This isn't a plot twist from a legal drama, but a real-life case from Courtenay that led to a mistrial application, questioning the boundaries of professional ethics and the accused's right to know. We navigate through the complexities of this case, drawing parallels with precedents from Canada and the UK, and ponder the judge's authority to declare a mistrial post-conviction.
Shifting our focus to Vancouver’s courthouse, we confront the grim reality of operating in a neighbourhood plagued by violence and open drug use. Despite the Crown Counsel Association's plea for relocation, Attorney General David Eby’s decision keeps the courthouse at its precarious location, raising concerns for all who walk its halls. The need for heightened security measures and the pressing call for addressing underlying social issues become glaringly apparent. As we wrap up, a seemingly trivial lawsuit over a $90 lens coating teaches us a valuable lesson about weighing the cost of legal battles. Michael Mulligan offers his perspective on exercising sound judgment before entering the legal fray, emphasizing the importance of picking one's battles wisely.
Follow this link for a transcript of the show and links to the cases discussed.
Unravel the complexities of the criminal justice system as we confront two captivating legal stories in this episode. We begin with the unsettling case of a man whose violent spree of stranger attacks led to a legal battle over his sentence. Despite a traumatic past and serious substance issues, the BC Court of Appeal upheld his seven-year sentence, prompting us to question the balance between justice and rehabilitation. Explore the legal principles of consecutive versus concurrent sentences and the totality principle while grappling with societal challenges around providing treatment and shelter to those who resist it.
The second chapter plunges us into the murky waters of a decades-old murder case that left $30,000 hanging in a bureaucratic limbo. Discover how procedural oversights and jurisdictional disputes have kept this money in legal no-man's land since 1992. Michael Mulligan from Mulligan Defence Lawyers joins us, offering expert insights into the ethical and legal implications of dealing with assets tied to criminal activities. As we discuss the mishandling of seized property—like a forgotten cell phone—the importance of adhering to time limits becomes strikingly clear. Prepare for a thought-provoking journey through the intricacies of law and its impacts on society.
Follow this link for a transcript of the show and links to the cases discussed.
Experience an insightful journey through the complexities of the electoral process and the justice system with Michael Mulligan, Barrister and Solicitor at Mulligan Defence Lawyers. Ever wondered how a mere 27-vote difference can trigger a full judicial recount? This episode unravels the meticulous choreography behind recounts in the Surrey-Guilford Electoral District. Michael sheds light on how transparency and voter privacy are harmonized, the role of media in maintaining public confidence, and the captivating stories of disputed ballots where every mark counts.
Switching gears, join us as we navigate through a high-stakes case in the Court of Appeal of the Yukon involving allegations of racial profiling during police stops. Discover the intertwining judicial framework between British Columbia and the Yukon and the challenges faced by a claimant attempting to prove systemic discrimination. Michael offers his expert perspective on why the court upheld the trial judge's decision and what this could mean for similar future claims. This episode is your chance to deepen your understanding of critical judicial processes and their profound impact on individuals and communities.
Follow this link for a transcript of the show and links to the cases discussed.
Discover the serious legal ramifications of fleeing from justice in our latest episode, where we promise to unravel the complexities of absconding from trial and inter-jurisdictional disputes. Join us as we dissect a compelling case from Canada involving a woman who, after facing charges of forging a passport application, fled to India mid-trial, leading to her conviction in absentia. Her attempts to appeal while abroad were denied. We also navigate the nuanced world of easements in British Columbia, focusing on a heated legal dispute over a navigation light easement impacting blackberry field owners. The principle of inter-jurisdictional immunity takes center stage, highlighting federal authority over aerodromes and shaping the court's decision to maintain the easement.
Enhance your understanding of these legal intricacies with insights from Michael Mulligan of Mulligan Defence Lawyers. His expert commentary illuminates how these legal principles impact our daily lives, offering listeners practical advice and a deeper appreciation of the law's reach. Michael's engaging discussion provides clarity on complex issues, ensuring you're up-to-date with current legal trends. Tune in to gain a richer perspective on how legal matters influence both personal and broader societal contexts with an episode that promises to be as informative as it is fascinating.
Follow this link for a transcript of the show and links to the cases discussed.
Get ready to uncover the intricacies of the legal system with Michael Mulligan from Mulligan Defence Lawyers as we dissect a fascinating case of breach of trust theft. Ever wondered why embezzling from an employer gets a harsher sentence than other types of theft? This episode promises to enlighten you on the significant emphasis courts place on general deterrence, especially when trust is violated. We break down the sentencing, guilty pleas, and the crucial distinction between serving time in a penitentiary versus house arrest.
But that's not all! We also tackle the essential tools for debt collection—garnishing orders—exploring how creditors can secure payments even before a trial. Michael shares his expertise on maneuvering these legal remedies, their strategic application, and how to avoid the pitfalls of unpaid strata fees. Through captivating cases and expert insights, you'll learn the financial repercussions of neglecting obligations, and why responding promptly to strata fees is vital for communal harmony. Don't miss this engaging discussion that sheds light on the complexities of law, responsibility, and financial prudence.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when a wealthy business owner disappears without a trace, leaving behind a tangled web of allegations, destroyed property, and unanswered questions? Join us as we explore this real-life mystery with expert insights from barrister and solicitor Michael Mulligan of Mulligan Defence Lawyers. We journey through the intricacies of the Presumption of Death Act, examining a case where millions in life insurance hinge on the final determination of a man's fate. From the eerie aftermath of a fire in his airplane hangar to the bizarre silence of his bank accounts, the case presents a fascinating puzzle full of legal and investigative challenges.
The episode takes an unexpected twist as we navigate the legal repercussions that arise if someone presumed dead were to reappear while also dissecting the nuances of Canadian law concerning police interrogations and the right to counsel. We also delve into a Court of Appeal case that revisits a first-degree murder trial due to the mishandling of a confession, emphasizing the critical importance of voluntariness in legal proceedings. Through these complex legal landscapes, listeners gain a deeper understanding of how justice is pursued and the vital role of law in unravelling mysteries. Tune in for a thought-provoking episode that promises to leave you with more questions than answers.
Follow this link for a transcript of the show and links to the cases discssed.
Ever wondered how a judicial recount can flip an election result on its head? Join us as Michael Mulligan, a seasoned barrister and solicitor with Mulligan Defence Lawyers, unravels the complexities of vote counting and recounts in Canadian elections. You'll gain unique insights into the procedures that follow the so-called "final count" and the very narrow margins that necessitate a mandatory recount. With captivating examples from the 2020 BC election and earlier federal contests, Michael illustrates how recounts can alter initial leads dramatically, revealing the fragility and volatility of election outcomes.
As if elections weren't complex enough, we switch gears to dissect the ongoing legal battles over cow sharing in British Columbia. Despite attempts to navigate through loopholes for raw milk consumption, the courts have upheld prohibitions against it. Michael provides a compelling narrative that highlights why this practice, while potentially viable in other provinces, remains contentious in BC. Tune in for an episode brimming with insightful legal stories that might just change the way you view electoral processes and cow ownership.
Follow this link for a transcript of the show and links to the cases discussed.
Unlock the secrets of British Columbia's electoral process as we journey through the intricacies of the Election Act with the knowledgeable Michael Mulligan from Mulligan Defence Lawyers. We'll explore how the act paves the way for an inclusive voting experience, spotlighting innovative measures like tele-assisted voting for individuals with disabilities and accommodations for voters with mobility challenges. The episode reveals how the integrity of our elections is upheld through systems that allow for challenging voter eligibility, ensuring that every voice is heard without compromise.
Take a step back in history with us as we examine the unique relationship between voting, prohibition, and the birth of the Liquor Control Licensing Branch in BC. Michael Mulligan sheds light on the fascinating, and sometimes quirky, legacies of the past that continue to influence the province today. From the intricacies of special ballots to the serious repercussions of corrupt voting practices, discover how modern technology secures the electoral process with offline voting machines while still accommodating regional flexibility. Join us for a revealing look at the Election Act’s impact on democracy in British Columbia, and the ongoing commitment to maintaining a fair and accessible voting system for all citizens.
Follow this link for a transcript of the show and links to the legislation discussed.
Can you really shoot a dog to save your chickens? We unravel this legal conundrum with the expert insights of Michael Mulligan, a seasoned barrister and solicitor from Mulligan Defence Lawyers. Mulligan helps us dissect the latest criminal justice reform proposals from the BC election campaign, including the prospect of hiring more sheriffs and judges to alleviate court backlogs. Together, we weigh the importance of a comprehensive strategy that also considers the roles of Crown counsel, court clerks, and legal aid. Plus, we look at the intriguing suggestion of a statutory court for minor offenses and the potential impact of such reforms on the justice system's efficiency.
In another fascinating segment, we're exploring property rights, animal protection laws, and the nuances of easement rights. Mulligan sheds light on a real-life case where a man’s attempt to defend his chickens led to legal repercussions. We navigate the complexities of the British Columbia Livestock Act, the Farm Practices Protection Act, and how these laws influenced the case. Shifting focus to North Saanich, we decode a court ruling on easement rights and the responsibilities they entail, illustrating the legal intricacies property owners face. This episode promises a thought-provoking journey through law and justice, raising important questions about rights and responsibilities.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when a seemingly straightforward hunting trip turns into a legal conundrum over age determination and strict liability offences? Join us as we unpack the captivating case of the Massey Ram. Michael Mulligan from Mulligan Defence Lawyers sheds light on how hunters can find themselves in hot water under the Wildlife Act, and why counting horn annuli is not as straightforward as it seems. We unravel the complexities of distinguishing between criminal and strict liability offences and explore the intriguing defence of due diligence using relatable examples like speeding.
Ever wondered about the ripple effects of handling a traffic ticket? Hear the cautionary tale of a commercial truck driver whose career took an unexpected turn after a simple payment. We dig into the implications of equating ticket payment with a guilty plea and the arduous journey of appealing a conviction past its deadline. And, in a recent Vancouver legal case regarding tree removal in a local park, we dissect why a judge ruled against a park injunction despite public concerns. This episode promises an enlightening journey through the intricate world of legal regulations, duty of care, and the far-reaching consequences of seemingly minor decisions.
Follow this link for a transcript of the show and links to the cases discussed.
Can we really ensure the safety and dignity of elderly care facility residents when young adults with severe mental health and addiction issues are placed among them? This episode exposes the unsettling reality in Victoria and Nanaimo, where vulnerable elderly individuals share long-term care homes with younger adults facing significant challenges. We break down the legal ramifications, analyze the Resident's Bill of Rights, and reveal shocking staff reports of drug use, violence, and inadequate staffing. The lack of enforcement mechanisms leaves elderly residents defenceless, sparking a crucial conversation about the need for alternative facilities.
Shifting gears, we also tackle the complex world of Canadian criminal law, specifically focusing on out-of-court statements. What circumstances make these statements admissible, and how reliable are they? With examples like dying declarations and res gestae, we explore the stringent criteria judges use to weigh their validity. A landmark Supreme Court of Canada case involving a pellet gun and the scrutiny of a statement's reliability provides a riveting backdrop. Join us as we demystify common misconceptions about police statements, highlighting that true justice hinges on solid witness testimonies in court.
Follow this link for a transcript of the show and links to the cases discussed.
Are machetes the next weapon to be banned in Canada? Join us as we dissect the provincial NDP Attorney General's request to the federal government following a tragic attack in Vancouver. We'll scrutinize the effectiveness of recent bail reforms and explore the peculiarities of Canada's current weapon prohibitions, including some surprising bans on items like nunchucks and certain missile launchers. Additionally, we delve into the federal government's controversial firearm buyback program, questioning the logic and execution behind these sweeping legislative measures.
In our second segment, we turn our attention to the mandatory Indigenous training course for the Law Society, which has ignited a heated debate over the accuracy of claims that bodies were located at the Kamloops Indian Residential School. We analyze a recent BC Court of Appeal decision and its broader societal implications, touching on the political dynamics at play. Finally, we welcome legal expert Michael Mulligan for an insightful conversation, offering thoughtful analysis and practical advice on an array of legal topics. If you're eager to understand the complexities of current legal issues from knowledgeable perspectives, this episode is a must-listen.
Follow this link for a transcript of the show and links to the cases discussed.
Curious about the legalities that surround everyday mishaps? Join us as we explore these fascinating topics with Michael Mulligan, a seasoned Barrister and Solicitor from Mulligan Defence Lawyers. We kick off by dissecting a real-life incident where a woman sustained serious injuries after tripping in a pothole at a 7-Eleven parking lot. Michael offers a deep dive into the Occupiers Liability Act in British Columbia, emphasizing the critical need for a reasonable system of inspections and maintenance to counter negligence claims. We'll also touch on the nuances of exceptions, such as for trespassers and specific rural or recreational properties.
Our discussion then shifts to a compelling estate dispute involving a father's will and his three daughters. The youngest daughter, despite being raised in a well-off environment by her aunt and uncle, felt emotionally abandoned by her biological father. This emotional complexity led to a court decision enforcing equal distribution among the daughters, stressing the moral obligation of adequate support. Wrapping up, we discuss the responsibilities of Judicial Case Managers in the Provincial Court.
Follow this link for a transcript of the show and links to the cases discssed.
Discover the hidden cracks in British Columbia's mental health system as we dissect a recent tragic case in Vancouver that underscores systemic failures. Despite the Mental Health Act's provisions, inadequate resources and treatment facilities have left many vulnerable individuals untreated and homeless. We'll explore the urgent need for proactive measures and discuss how addressing mental health issues is paramount for both public safety and humane treatment.
Is the bail system in BC failing those in crisis? We scrutinize the strain on emergency departments and police resources, especially regarding mental health emergencies. Our conversation goes beyond the limitations of bail as a reactive measure and calls for a comprehensive overhaul of the system. Hear about a poignant civil case involving a police dog attack during a domestic dispute, adding another layer to the complexities of our current public safety practices.
Unravel the complexities of legal disputes and interim injunctions with our expert guest, Michael Mulligan, from Mulligan Defence Lawyers. We break down the three-part test for injunctions and the unique considerations in trespass cases, shedding light on why summary trials falter when facts are contested. Using an intriguing case about a lime green Porsche, we'll illustrate the challenges judges face in resolving disputes efficiently. Don't miss this enlightening discussion on the nuances of the legal system and how it impacts real-life cases.
Follow this link for a transcript of the show and links to the cases discussed.
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.
Ever wondered how far the boundaries of solicitor-client privilege extend? Join us in a riveting conversation with Michael Mulligan from Mulligan Defence Lawyers as we explore the critical nuances of wiretaps and lawyer-client communications. Starting with a fascinating case from Saskatchewan, we uncover the story of a lawyer acquitted of obstruction of justice for allegedly tipping off a client about a search warrant. This episode promises an in-depth understanding of the stringent requirements for intercepting private communications in Canada, especially those involving lawyers, and emphasizes the pivotal role of legal provisions designed to protect privileged conversations.
We'll also dissect the British Columbia NDP government's contentious efforts to regulate lawyers through the Legal Professions Act, juxtaposed against the long-standing independence of the Law Society of British Columbia.
Finally, you'll gain insights into a judicial ruling about the enforceability of illegal contracts, with expert commentary from Michael Mulligan on why invoices tied to illegal schemes are not upheld in court. This episode is packed with critical legal insights and serves as a compelling reminder of the importance of adhering to legal and ethical standards in professional dealings.
Follow this link for a transcript of the show and links to the cases discussed.
What if the justice system could truly hold police accountable? Explore the intricate and troubling case from Prince George, starting with a tragic encounter between an Indigenous man and RCMP officers that led to his death. We'll unravel the story of a bystander's crucial video evidence, its controversial deletion, and the ensuing legal battles that spotlight the need for judicial transparency and independent investigations.
Two RCMP officers faced obstruction of justice charges. One officer's unconvincing testimony led to an acquittal, while a rookie officer's manifest dishonesty resulted in his conviction. Michael Mulligan of Mulligan Defence Lawyers joins us to provide expert analysis on the fine line between doubt and guilt, the complexities of police interactions with personal cell phones, and the preservation of evidence.
Our final chapters shift to financial and judicial complexities. A BC couple leaves vulnerable investors in ruins and declares bankruptcy to avoid paying a multi-million dollar penalty. The Supreme Court of Canada concludes that some, but not all, debts related to the case survived bankruptcy. Mulligan breaks down how the law navigates these high-stakes scenarios, ensuring that listeners walk away with a nuanced understanding of these pivotal legal issues. Don't miss out on this comprehensive and insightful episode!
Follow this link for a transcript of the show and links to the cases discussed.
How can courtroom chaos lead to a year-long prison sentence being overturned? Discover the riveting story of a man's disruptive behaviour during his trial that led to a contempt conviction. Find out why his relentless pseudo-legal arguments and interruptions didn't hold up as the Court of Appeal stepped in to reverse the decision. We break down the different forms of contempt of court, focusing on incidents that occur directly in the courtroom, and explore the fine line between maintaining order and upholding justice.
But that’s not all—we also delve into the harrowing case of a woman who endured severe complications from a broken epidural needle during childbirth. This segment uncovers the essential elements of a medical negligence claim, such as duty of care and causation of damages, and highlights the stakes involved in medical equipment manufacturing. Plus, we tackle the legal framework surrounding police seizure of evidence, striking a balance between law enforcement needs and individual rights. Don’t miss our legal discussion with Michael Mulligan from Mulligan Defence Lawyers, who offers his expert insights on current legal issues that could affect your life.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when a tragic act of violence intersects with mental illness and substance abuse? Join us on Legally Speaking as we unpack the heart-wrenching case of a 25-year-old Indigenous man in Trail, BC, who fatally attacked a 78-year-old stranger. This episode challenges the simplistic narrative of violent acts as mere bail system failures. We scrutinize the court's decision to convict the man of manslaughter instead of murder, shedding light on the significant role his mental state and drug-induced delusions played. Through this lens, we explore the deeper societal and systemic issues that contribute to such incidents, advocating for a more nuanced understanding and approach.
In another compelling segment, we dissect a wrongful dismissal case involving a 31-year-old software developer, highlighting the complexities of employment contracts and the critical role of consideration. Discover how an initial detailed email outlining job specifics was upheld over a subsequent, less substantial letter, resulting in a favourable court ruling for the employee. This discussion underscores the importance of clear and fair employment terms, and why understanding the intricacies of employment law can make or break your case. Whether you're an employer, employee, or simply curious about the legal world, this episode is packed with insights that resonate beyond the courtroom.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when the law collides with contentious family decisions and public safety? Join us as we sit down with Michael Mulligan, a barrister and solicitor from Mulligan Defence Lawyers, to dissect a variety of complex legal scenarios. From the stringent criteria required to appeal to the Supreme Court of Canada to a severe sentence handed down in Ontario for driving while disqualified, we explore the heavy legal consequences that can arise from repeated offences. This episode sheds light on British Columbia's stringent driving prohibition laws, illustrating how infractions can lead to significant penalties.
Have you ever wondered how the courts handle parental disputes over medical decisions for their children? We dive into a heated legal battle in British Columbia, where separated parents clashed over their daughter's HPV vaccination. While the mother championed the vaccine for its cancer-preventing benefits, the father opposed it, influenced by dubious online sources. Through the lens of Section 49 of the Family Law Act, Michael Mulligan discusses how the judge ultimately ruled in favour of the mother, underscoring the importance of credible evidence and the overwhelming benefits of the HPV vaccine.
Finally, we examine two pivotal cases that underscore the importance of evidence-based decision-making. Discover how a judge mandated a child's vaccination, overriding a father's objections rooted in internet misinformation, and the implications of this decision. We also explore a case involving an 80-year-old man who was required to retake a driving test following a cognitive assessment despite a subsequent higher score. This episode highlights the delicate balance between individual rights and societal safety, with expert insights from Michael Mulligan that you won't want to miss.
Follow this link for a transcript of the show and links to the cases discussed.
Can employers terminate employees without cause, and what are the legal nuances involved? Michael Mulligan from Mulligan Defence Lawyers to unravel a recent Court of Appeal decision in British Columbia surrounding wrongful dismissal, notice, and an employment contract. We dissect the case of a senior employee from Harbour Air Seaplanes who was let go during the COVID-19 pandemic and examine how the interplay between federal legislation and common law could influence compensation beyond the statutory minimums.
But that's not all. We also tackle the significant ramifications of a landmark Supreme Court of Canada ruling on language rights in criminal courts. This decision, stemming from a British Columbia case, mandates judges to ensure accused individuals are informed of their language rights, causing a ripple effect throughout the judicial system. Finally, we delve into liability issues under the BC Wildfire Act, spotlighting a judicial review that overturned hefty penalties for a man whose extinguished fire reignited. This episode promises a comprehensive tour through pressing legal landscapes, from employment law to language rights and wildfire liability.
Follow this link for a transcript of the show and links to the cases discussed.
What happens when the right to a fair and public trial clashes with the need to protect informer confidentiality? This episode of our podcast takes you through a riveting journey into the complex world of informer privilege and the right to a transparent judicial process. We scrutinize a landmark Supreme Court of Canada decision involving a secret trial in Quebec, where the Quebec Court of Appeal overturned the conviction due to abuse of process. Michael Mulligan from Mulligan Defence Lawyers joins us to dissect the intricate legal principles at play and ponder the broader implications for justice and transparency in Canada.
But that's not all. We'll also cover a gripping case from the BC Court of Appeal, where a woman was awarded over $1 million in damages after being struck by a hockey puck. This case exemplifies the intricacies of personal injury law, highlighting the challenges in compensating for lost future income and non-pecuniary damages. With expert insights from Michael Mulligan, our discussion provides a comprehensive look at these pivotal cases, offering a deeper understanding of the Canadian justice system's complexities and the ongoing tension between individual rights and public interest.
Follow this link for a transcript of the show and links to the cases discussed.
Can corporations truly safeguard your privacy, or are we all at risk? Join us as we tackle this pressing question with Michael Mulligan from Mulligan Defence Lawyers. In one of the most startling cases in recent memory, we dissect how an employee at the Insurance Corporation of British Columbia (ICBC) sold personal information, resulting in arson and shootings. You'll learn about the class-action lawsuit that followed and the judicial system's decision to award $15,000 per affected individual despite ICBC's efforts to minimize compensation. Plus, we dive into the unsettling case of a widow sued by the Royal Bank of Canada for her late husband's Visa bill despite having insurance meant to cover the debt, shedding light on the critical issue of consumer protection.
Ever wondered why resolving disputes with neighbours often ends up in a legal quagmire? We'll explore this topic through the lens of a real-life tree dispute between neighbours, revealing the limitations of provincial court judges and the complexities of such cases. Michael Mulligan offers invaluable insights into why it's crucial to resolve conflicts amicably rather than dragging them through lengthy court battles. Whether it's about border trees or shared responsibilities, you'll gain a new perspective on managing minor conflicts without escalating them into costly legal entanglements.
Follow this link for a transcript of the show and links to the cases discssed.
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.
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.
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.
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.
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.
Join the riveting conversation with Michael Mulligan from Mulligan Defence Lawyers as we unravel the complexities of the presumption of innocence in a special episode that delves into the legal labyrinth following a man arrested for multiple carjacking incidents. Mulligan illuminates the difficult decision points for police post-arrest and lays bare the intricacies of bail assessment, particularly when the individual in question has no criminal history. As we dissect the safeguards of community safety versus an individual’s right to freedom, our exploration will leave listeners with a deeper understanding of the criminal justice system's inner workings and the philosophical underpinnings of justice.
The dialogue then pivots to a meticulous dissection of Canada's bail system, where we dissect real and hypothetical cases that bring the theory of law to life. From a mayor's alleged murder captured on film to repeated car thefts by an individual, the episodes lay bare the tension between the constitutional right to bail and the imperative to ensure public safety. The crescendo of our legal symposium examines a BC Court of Appeal case involving an ex-RCMP officer, scrutinizing the evidence, jury instructions, and the steadfastness of the justice system in upholding a conviction. This episode promises to offer listeners an unparalleled look into the nuances of crime and punishment, evidence analysis, and the weighty responsibilities shouldered by the courts.
Follow this link for a transcript of the show and links to the cases discussed.
Prepare to navigate the tumultuous waters of legal reform and societal justice with our guest, Michael Mulligan from Mulligan Defence Lawyers. Our latest episode peels back the layers of Bill 21, a contentious BCNDP legislation aimed at bringing the regulator of lawyers in British Columbia under political control. Feel the electric tension as we dissect the Law Society of BC's apprehensions, the BC Conservative Party's firm stance on repeal, and the international law implications flagged by Lawyers' Rights Watch Canada. We tackle the poignant question: How will political gamesmanship shape the future of legal regulation?
Venture further as we redefine the ordinary, transforming a Surrey man's storage dilemma into a case study on municipal bylaws. Meanwhile, we scrutinize the recent triage policy by the BC First Nations Justice Council on Gladue reports, underscoring the impact a lack of resources could have on justice for Indigenous people. Join us for a compelling journey through the intricate crossroads where law meets life.
Follow this link for a transcipt of the show and links to the cases and material discussed.
British Columbia's legal system faces a seismic shift with Bill 21, a move that could rock the bedrock principle of lawyer independence. As the government nudges its way into the Law Society's boardroom, we're left pondering: will the scales of justice tilt in favour of those in power? This episode pulls back the curtain on the potential repercussions of such unprecedented government involvement. Joined by Michael Mulligan from Mulligan Defense Lawyers, we dissect the changes proposed to the Legal Profession Act, critique the government's objectives, and forecast the intricate dance between lawyers and lawmakers in the courtroom ballet.
The legal community stands at a crossroads as we scrutinize the trajectory of professional autonomy in the wake of Bill 21. Our conversation with Mulligan not only maps the contours of the looming battle for the soul of legal self-regulation but also spotlights the broader ramifications for our society's democratic health. This episode is a clarion call for those who hold the principles of a robust, independent judiciary dear, as we navigate the chilling prospect of a legal landscape where the voice of the advocate could be stifled by the hand that writes the law. Tune in for an in-depth exploration of the stakes at play, where the rule of law hangs in the balance.
Follow this link for a transcript of the show and links to the legislation discussed.
Embark on a journey through Canada and New Zealand's legal intricacies with Michael Mulligan from Mulligan Defense Lawyers as we dissect how these common law cousins approach justice, representation, and the battle against drugs. You'll be captivated by our discussion highlighting the disparities in Indigenous peoples' representation in the prison systems—a pressing issue both here and in the land of the long white cloud. And if you're intrigued by the varying tactics in the war on drugs, our analysis of how New Zealand's crystal meth problems contrast with Canada's fentanyl crisis will provide you with a new perspective on a global challenge.
Let's transport you to a Kiwi courtroom, where the protocols of bail hearings and the role of police officers in lower court prosecutions might astound you. Michael Mulligan brings his legal acumen to the table, shining a light on recent cases and legislative changes that affect our lives. We'll also unearth the history and impact of British Columbia's Crown Counsel system.
Next, we delve into the Patients Property Act, revealing its implications for those with disabilities in our communities. Prepare to be enlightened as we navigate the ebbs and flows of international justice and its local impact in a conversation that promises to be as informative as it is thought-provoking.
Follow this link for a transcript of the show and links to the cases discussed.
Discover the fate of legal independence in British Columbia as Michael Mulligan from Mulligan Defence Lawyers lends his expertise to the latest legal system 'modernization' attempts. This week's episode pulls back the curtain on the government's controversial plans to revamp the Law Society of British Columbia, including a reduction in elected lawyer positions, which may lead to increased government sway over legal affairs.
The BCNDP seems intent on ignoring a warning from the Supreme Court of Canada on the essential nature of an autonomous legal profession, particularly when the rights of individuals stand against government interests, and is proposing that it be given greater control over the regulation of lawyers. The government proposal is troubling for anyone who may have a legal conflict with the government.
Also on the show, we lay bare the troubling conduct of the Insurance Corporation of British Columbia (ICBC) in defying a court order to pay a retired teacher her rightful compensation following a road mishap. Hear Michael's insightful breakdown of how ICBC's refusal to release $407,000, designated for the victim's future care, raises alarm bells about the insurer's integrity and the challenges faced in the pursuit of justice. With BC embracing a no-fault insurance scheme, our conversation underscores the imperative need for an unbridled judiciary to balance the scales against formidable entities like ICBC. This episode is an urgent call to stay vigilant about the mechanisms that safeguard our individual rights and the importance of a legal profession that can operate without undue influence.
Follow this link for a transcript of the show and links to the cases discussed.
Discover the intricate dance of legality and medicine as we sit down with Barrister and Solicitor Michael Mulligan from Mulligan Defense Lawyers, dissecting a lawsuit that could transform the landscape of healthcare in British Columbia. The Society for Canadians Studying Medicine Abroad, representing future doctors trained overseas, is challenging the residency placement system they believe is unfairly blocking their path. Through an engaging discussion, we navigate the complexities of a system that currently favours domestic medical graduates and the constitutional implications that come with such a divide. This episode promises not just an exploration of the legal battlefield but a broader conversation on the urgent need for more healthcare professionals in our system.
Our conversation then shifts to a poignant and sobering case from Port Alberni, where a mother finds herself entwined in the legal system's grasp following the tragic death of her son. The nuances of a 'lesser included offence' emerge as we scrutinize how a jury's verdict can alter the course of a person's life, leaving us to ponder the fine line between manslaughter and second-degree murder. With Michael Mulligan's expert insight, we examine the shadows of jury decision-making, mandatory sentencing, and the weighty responsibilities tied to firearm ownership.
Follow this link for a transcript of the show and links to the cases discussed.
Understand the groundbreaking shift in digital privacy through an engaging conversation with Michael Mulligan of Mulligan Defence Lawyers as we dissect a recent Supreme Court of Canada judgment. The verdict is reshaping how we perceive privacy concerning our IP addresses, which, as it turns out, are windows into our personal lives and not just innocuous identifiers. Michael walks us through the complexities of a case that has set a new standard: law enforcement agencies must now secure a warrant before obtaining IP data. This discussion is a must-hear for anyone eager to grasp the profound implications for our constitutional rights in this digital age.
Venture into the heated debate over British Columbia's approach to drug possession decriminalization with a critical eye on the Restricting Public Consumption of Illegal Substances Act. We dissect the political chess game involving the provincial government's legislation, the backlash from harm reduction advocates, and the subsequent legal scuffles that led to an interim injunction. The episode paints a vivid picture of the tug-of-war between law enforcement, public health, and community well-being, highlighting the ongoing struggle and its wider implications for drug policy in the region. Stay tuned for a detailed analysis of these pressing issues, informed by the latest legal developments and social dynamics.
Follow this link for a transcript of the show and links to the cases discussed.
Discover the thin line between lawful investigation and constitutional breaches with our expert Michael Mulligan from Mulligan Defense Lawyers. We dissect a murder case where evidence handling sparked controversy and an acquittal that left many questioning the integrity of the investigation. Dive into a profound discussion on the procedural missteps during the seizure of cell phones and a security system, and how these actions swayed a trial's outcome. The legal dance between police conduct and individual rights is laid bare, offering a rare glimpse into the complex machinery of our criminal justice system.
Shifting gears, we tackle the clash between a First Nation's rights and energy infrastructure in British Columbia. The heart of the debate? A hydro dam's operation they claim infringes on their longstanding fishing practices. Mulligan guides us through the nuances of the Kennedy Dam's effects on the Nechako River, and the formidable legal arguments at play. The case transcends a simple legal dispute, shedding light on the intricate relationship between energy needs, environmental responsibilities, and the sovereignty of indigenous peoples. Join us for a thought-provoking exploration of these critical issues that continue to shape the legal and cultural landscape of the region.
Follow this link for a transcript of the show and links to the cases discsussed.
Have you ever grappled with the intricate workings of the legal system or wondered how an ordinary person can fare against its complexities? Michael Mulligan from Mulligan Defense Lawyers joins us to unpack a gripping small claims court drama where a patient fearlessly faces a dentist over accusations of negligence. Walk through the courtroom doors in Abbotsford and witness the struggle of gathering admissible evidence, the nuances of consent in medical treatments, and the precarious balance between self-representation and the need for legal expertise. This episode peels back the layers of professional negligence, highlighting the importance of expert testimony and the adjudication of consent and battery in medical settings.
The legal labyrinth doesn't stop there; join us as we navigate the murky waters of extradition laws, where missed deadlines and constitutional challenges spark a heated discourse on international justice. Then, we shift gears to a contentious condo ownership dispute that reveals the decisive role of equity when legal titles clash with lived realities. Michael Mulligan helps us dissect how Canadian courts handle the delicate issues of resulting trusts and equitable interests, offering a glimpse into the soul of justice and fairness as it intersects with the surge in property market values. Through these stories, we confront the compelling question: how does the law reconcile with the twists and turns of human relationships and the inevitable missteps of bureaucracy?
Follow this link for a transcript of the show and links to the cases discussed.
Unlock the secrets of safeguarding your last wishes with a captivating narrative from Quadra Island, where an elderly lady's lost will sets off a legal firestorm over the presumption of destruction. As I narrate this tale of vanished legacies, you'll discover the critical importance of not only crafting a meticulous will but also ensuring its safekeeping. This episode plunges into the murky waters of estate law, unravelling a mystery that serves as a stark reminder: the absence of a will can unleash Pandora's box of legal quandaries.
Our discussion takes to the skies with the ongoing saga of airlines wrestling with the responsibility of accommodating passengers with disabilities without burdening them with extra fees. WestJet's legal turbulence illustrates a broader challenge for the airline industry: who should pay when a passenger is too large to fit in an economy seat or if they require an assistant to fly with them? And with Michael Mulligan of Mulligan Defence Lawyers providing expert insights, we're armed with the knowledge to navigate these legal crosswinds with finesse.
Finally, we scrutinize the often misunderstood role of character evidence in criminal trials and its potential to make or break a case. Through a real-world example, we dissect how a courtroom misinterpretation led to an unjust conviction, drawing attention to the appellate court's role in correcting such mistakes. This episode not only sheds light on the intricacies of trial and appellate processes, but it also underscores the importance of getting it right the first time—because justice should be more than just an assumption. Join us for a journey through the landscape of law, where every detail holds the power to tip the scales.
Follow this link for a transcript of the show and links to the cases discussed.
From the sanctified grounds of religious buildings to the surprising sanctuaries for fruit trees and bomb shelters, we probe the public policy implications when specific properties are relieved from bearing the tax burden, leaving others to shoulder the financial weight. Our discussion navigates the murky waters of the Rural Area Taxation Act, shedding light on the ripple effect tax exemptions have on society.
Also on the show, BC Hydro pulled the plug on a forestry company's cryptocurrency aspirations.
Finally, a sexual assault conviction is overturned as a result of Crown Counsel cross-examining the accused on whether the complainant was attractive and the trial judge making their own assessment of the complaint's attractiveness.
Follow this link for a transcript of the show and links to the cases discussed.
Discover the far-reaching consequences of proposed changes to the Land Act in BC. With 94% of BC's land owned by the Crown, changes that would afford First Nations groups veto power over land use decisions could have a profound impact on how the province is governed.
The provincial government's attempt to make the changes without a transparent consultation process, as well as the broader implications for democracy in the province, are discussed.
Also, on the show, the doctrine of frustration of contract is discussed in the context of a case involving a claim for severance pay by an employee from a duty-free shop that was forced to close due to COVID-19.
Finally, a Court of Appeal decision involving the censure of an elected councillor who disclosed confidential information to a lawyer in order to obtain legal advice is discussed.
Follow this link for a transcript of the show and links to the cases discussed.
Unravel the complexities of Canadian law with barrister and solicitor Michael Mulligan, as he clarifies a major court decision on the government's use of the Emergencies Act during the 2022 trucker protest. Grasp the intricacies of why the court found this move both unreasonable and unconstitutional, and how it could signify a turning point for civil liberties in Canada. We're breaking down the Charter of Rights and Freedoms, potential overreach of government power, and the implications of free expression, all through the expert lens of our esteemed guest.
Transitioning to the tangible world of construction and liability, the episode shifts gears to dissect the Ridgeview Place legal saga. Michael Mulligan aids us in navigating the treacherous waters of who's to blame when construction goes awry, especially after companies dissolve and municipalities are left holding the bag. This segment promises to shed light on how a recent appeal court decision might reshape the landscape of liability in construction, affecting everything from individual property rights to the responsibilities of engineering firms and the role of municipalities in safeguarding their communities. Join us as we investigate these legal battles and their far-reaching consequences on the industry.
Follow this link for a transcript of the show and links to the cases discussed.
This episode brings to the forefront the delicate balance between activism and legality, alongside the intricate nature of estate planning. The discussions offer invaluable insights for anyone interested in how the legal system addresses these often contentious issues.
We are also introduced to animal rights protesters who took drastic measures to expose what they believed were injustices within a pig farm. Barrister and Solicitor Michael Mulligan dissects the legal reasoning behind the protesters' defence, which drew parallels to a seemingly unrelated case in Ontario involving zoning laws and noise complaints. Mulligan brings to light the Court of Appeal's decision, which focused on the immediate legalities of the protesters' actions rather than the broader ethical questions raised by their cause. This segment highlights the complexities that arise when the fervour of activism meets the strictures of the legal system.
The episode also delves into the often-overlooked nuances of estate planning, illustrating how easily intentions can become muddied without explicit legal documentation. The story of a family torn apart by a contentious asset transfer serves as a cautionary tale, emphasizing the importance of clear directives in estate planning. Mulligan elucidates the concept of a resulting trust presumption and the admissibility of hearsay evidence in court, showing how these legal mechanisms can shape the outcome of inheritance disputes.
Furthermore, the episode explores the critical role of explicit legal planning in safeguarding one's final wishes. It highlights the importance of leaving behind a clear and legally sound plan to avoid leaving loved ones embroiled in litigation.
Finally, the episode deals with a successful claim for negligence arising from a serious injury caused by a side tackle in a recreational soccer game.
Using a hockey analogy to explain the situation to a broad Canadian audience, the Court of Appeal explains that legal liability can flow from activity permitted in a game that is carried out in a reckless manner.
Follow this link for a transcript of the show and links to the cases discussed.
Navigate the complexities of landlord-tenant relationships with the expertise of Barrister and Solicitor Michael Mulligan from Mulligan Defense Lawyers, who joins us to unravel a contentious case where legal procedures and personal rights collide. As we dissect the Duncan case, you'll gain an understanding of how a simple notice for personal occupancy can escalate into a substantial monetary judgment and why procedural fairness in the Residential Tenancy Act hearings is more crucial than ever. Discover the role modern technology plays in judicial fairness as telephone hearings present unique challenges, including the risk of one party being left in the dark due to unequal access to documents.
Transitioning to the workplace, we explore the razor-thin line between honesty and deceit through a narrative that serves as a cautionary tale for any professional. Michael Mulligan breaks down an intriguing wrongful dismissal lawsuit, where a manager's meal receipts resulted in cause for dismissal. But that's not all; we also examine the heart-wrenching story of a student's battle for rightful compensation following life-altering car accidents, contrasting this with the current landscape of no-fault insurance. Whether you're a landlord, tenant, employer, or employee, this episode provides not only the legal insights you need to navigate these waters but also the personal stories that remind us of the stakes at hand.
Follow this link for a transcript of the show and links to the cases discussed.
Dive into the heart of British Columbia's drug policy transformation with the sharp legal insight of Michael Mulligan from Mulligan Defense Lawyers. Unravel the threads of the decriminalization initiative and the controversial exemption sparking debate from the streets to the courtroom. Amidst the policy shifts, we scrutinize the troubling uptick in public drug consumption and the persistent scourge of drug-related fatalities. The episode takes an incisive look at BC's Restricting Public Consumption of Illegal Substances Act and the challenging legal terrain it navigates, all through the lens of Mulligan's profound expertise.
Witness the tension between good intentions and the stark realities faced by those in the grip of the fentanyl crisis. Weigh the efficacy of policies meant to protect yet seemingly falter as public spaces become hotspots for substance use. This week's episode merges legal insight with societal impact, bridging the gap between what is legislated and what is lived by communities. Join Michael and me every Thursday for a forensic analysis of the laws shaping, and sometimes shaking, the bedrock of our society on CFAX 1070.
Follow this link for links to the cases discussed and a show transcript.
Navigating the intricate labyrinth of inheritance law, Michael Mulligan from Mulligan Defense Lawyers illuminates the conflicts that can ensnare beneficiaries doubling as executors of wills. Our conversation scrutinizes the importance of meticulous estate planning and the often-overlooked wisdom of appointing an impartial executor. We dissect a compelling legal case that invokes Section 103 of the Wills, Estates, and Succession Act, unravelling its role in safeguarding an estate during contentious litigation. Tune in for an education on the delicate balance of respecting a deceased's wishes while upholding the letter of the law.
The waters of real estate transactions are murky, but with Mulligan's expert guidance, we chart a course through the tale of a Vancouver woman's legal battle with her real estate agent. This chapter is a masterclass on the distinction between negligence and breach of fiduciary duty as we dissect the court's decision in her attempts to flip three condominiums. The episode is an eye-opener for property investors and a stark reminder of the professional responsibilities that real estate agents must shoulder. Join us for these riveting narratives that reveal the complex dance between legal obligations and the pursuit of property profits.
Follow this link for a transcript of the show and links to the cases discussed.
When it comes to understanding the intricate legalities surrounding car accidents and insurance monopolies, there's no better guide than Michael Mulligan from Mulligan Defence Lawyers. In a revealing podcast episode, Mulligan elucidates murky financial arrangements at the Insurance Corporation of British Columbia (ICBC), a Crown corporation with a grip on British Columbia's vehicle insurance.
The episode delves into a class action certification that shines a light on ICBC's financial transactions. Allegedly, ICBC made payments to the BC government for medical expenses that were not mandated, essentially imposing an unsanctioned tax on the ratepayers. This raises profound questions about the government's use of Crown corporations for financial cosmetics and the impact these actions have on individuals involved in car accidents.
Mulligan further explores the repercussions of these payments, including the potential inflation of insurance rates and the deprivation of benefits for at-fault drivers. The discussion extends to the monopoly ICBC holds and its complex involvement in the medical funding realm. Listeners gain insights into the implications of insurance monopolies, like ICBC, and the significant effects they have on both legal responsibility and the overall financial landscape for drivers in British Columbia.
Shifting the focus to vehicle ownership and liability, the episode examines a perplexing case from Central Saanich that links back to a Victoria car dealership. Mulligan breaks down the legal entanglements resulting from a car dealership's aggressive sales tactics that led to a complicated court battle. This case study highlights the critical importance of understanding the nuanced legal definitions of ownership and permission, particularly in light of the evolving insurance systems, such as the move to a no-fault system.
The podcast provides a valuable lesson in the importance of due diligence when lending vehicles, as well as the increased responsibility that accompanies it. This knowledge is increasingly relevant in the context of the changing landscape of car accident liability and insurance rates.
Through the course of the podcast, listeners are equipped with the tools to navigate the precarious world of car accident liability and insurance. Mulligan's expertise offers a compelling examination of the hidden truths behind government payments, legal responsibilities on the road, and the influence of insurance monopolies.
By the end of the episode, you are more informed about the dynamics of insurance, ownership, and responsibility. With Mulligan's legal acumen, the complexities of ICBC's financial entanglements and the subtleties of car accident liability are decoded, offering clarity and a wealth of knowledge to anyone looking to understand these significant issues.
Follow this link for links to the cases discussed and a transcript of the show.
We started by discussing a captivating case from Central Saanich, a family farm at the center of a contentious legal dispute over tree protection bylaws. As we delved deeper into the case, we questioned the extent of the Community Charter's power on municipalities and whether farming should be classified as 'development'. Understanding the limitations and restrictions of tree protection bylaws is crucial, as it can help property owners avoid unnecessary legal disputes.
Our exploration didn't stop there. We moved to Surrey, where we dissected two riveting cases involving property conversions. The first case highlighted the role of insurance companies in defending their insured during a civil claim. It underscored the necessity of the insured party's cooperation in the defence process and emphasized the insurance company's right to control the defence, given they bear the financial responsibility.
The second case presented a cautionary tale of a homeowner who attempted to convert a single-family home into a fourplex without obtaining the necessary permits. The repercussions were severe and served as a chilling reminder of the importance of adhering to building regulations. The consequences of failing to comply with such regulations can lead to drastic measures, such as an order for the destruction of the unpermitted structures.
Throughout our conversation with Mulligan, we emphasized the real-world implications of these legal issues. The laws and regulations governing tree protection and property conversions aren't abstract or remote concepts. They are rules that have a direct impact on our everyday lives, affecting everything from our living arrangements to our interactions with nature.
Our discussion underscored the necessity of understanding these laws, especially for property owners. Knowing the limitations of tree protection bylaws can prevent costly and time-consuming legal disputes. Similarly, understanding the consequences of failing to comply with building regulations can save property owners from harsh penalties, including the destruction of their property.
Overall, this episode serves as a reminder of the intricate, often challenging, nature of property law. It highlights the importance of seeking expert advice when navigating this complex field. Whether it's understanding the nuances of tree protection bylaws or the specifics of property conversions, legal professionals like Michael MUlligan provide invaluable guidance, shedding light on these complicated issues.
Stay tuned for future episodes where we continue to explore the intricate world of law and its impact on our daily lives. We promise it will be a rollercoaster ride through the world of law that you won't want to miss.
Follow this link for links to the cases discussed.
Ever wondered about the potential pitfalls of inadequate paperwork and the enforceability of oral agreements? Well, buckle up! We've got Michael Mulligan, a seasoned Barrister and Solicitor, guiding us through some intriguing legal scenarios that just might make you rethink your decisions. We unpack a fiery dispute between two brothers over their mother's estate, a testament to the importance of arranging your affairs properly. The concept of consideration, joint tenancy and how your decisions could impact your family after you're gone are just a few things we'll be dissecting.
But that's not all. We're also diving into the complex world of conservation law, examining a case where UBC's housing development plans hit a snag due to an unanticipated obstacle - an eagle's nest! As we delve into the case, we highlight the intricacies of conservation efforts. Also on the menu is a discussion on the power and responsibility of the provincial legislature in maintaining smooth local governance. We're putting the spotlight on a recent case in Alberta, where a dysfunctional city council had to be ousted by the provincial government. So, join us as we navigate these riveting legal landscapes with our expert guide, Michael Mulligan.
Follow this link for a full summary of the episode, a transcript and links to the cases discussed.
We start the episode by discussing the federal government's attempt to ban various plastic items. The ban was met with constitutional challenges from the Responsible Plastic Use Coalition and two provinces, Alberta and Saskatchewan. The federal government tried to classify plastic as 'toxic', a categorization that was deemed unreasonable by the judge due to lack of evidence. Furthermore, the government's jurisdiction to regulate garbage and related matters was questioned, as it falls under provincial jurisdiction. This situation offers an insightful glimpse into the power struggle between federal and provincial governments and the limitations of criminal law power.
The episode then moves on to the government's mounting attempts to gain more control over the legal profession. We spotlight a recent case where the federal government tried to compel lawyers to report their clients' transactions to the tax department. This move raises alarming questions about the independence of the legal profession and the sanctity of client-lawyer confidentiality. The episode highlights the efforts of law societies across the country to push back against such government intrusions.
This attempt to force lawyers to turn information over to the government about their clients is an example of why the BC government's proposal to take further control over their regulation of lawyers as part of a "Single Regulator" system is so problematic.
The last segment of the episode dives into the intricacies of wills and estates, spotlighting a case where a woman passed away without completing her will. The case underlines the importance of having a will in place and the legal repercussions that follow when one isn't. A related case, where a judge validated a woman's wishes for her estate as expressed in a letter, underscores the importance of intent and reasonable action in such scenarios.
Overall, this episode provides a fascinating journey through the legal world's crossroads with societal issues. With expert insights from Michael Mulligan, it serves as an invaluable guide to understanding some of the most complex and contemporary legal challenges of our time.
From understanding the legal and constitutional implications of a plastic ban to the complexities of estate planning and government intrusion into the legal profession, this episode offers an enlightening deep dive into the labyrinth of the law. Whether you are a law enthusiast, a practicing lawyer, or a curious listener, this episode is sure to broaden your understanding of the intricate dynamics of the legal world.
Follow this link for a transcript of the show and links to the cases discussed.
In our recent podcast episode, we delved deep into the complexities of the British Columbia (BC) Constitution Act, focusing on the potential reasons a member of the legislative assembly (MLA) could forfeit their seat. These reasons can range from absenteeism and allegiance to foreign powers to dual citizenship and serious criminal convictions.
The subject has become a hot topic following recent upheaval over a Victoria city councillor's controversial letter. However, the BC Constitution Act goes beyond merely providing a framework for government operation; it also lays the groundwork for political accountability. Understanding the Act's intricacies allows us to better comprehend the checks and balances in place to ensure public officeholders adhere to expected conduct.
We also explored two notable legal cases that have recently made the news. The first case involved an injury-at-work incident that resulted in a $10,000 award under the human rights code. Despite the employer's best efforts to appeal, the decision was upheld, shedding light on the complexities of the human rights code in workplace situations.
The second case revolved around a property tax predicament. A couple faced a heavy 20% tax on their house purchase because one of them was not a permanent resident or citizen. This case highlighted the government's role in court cases and the importance of judicial independence.
Overall, these discussions underscore the government's significant role in court cases and the judicial system's critical independence. As citizens, it's essential to understand how these legal mechanisms work, not only to protect our rights but also to ensure we remain informed and active participants in our democracy.
The BC Constitution Act and the various legal cases we discussed underscore the vital interplay between politics and law. Whether it's the forfeiture of a political seat or the interpretation of human rights in a workplace injury case, these legal provisions and judgments shape our society's functioning. As such, understanding them is not just a matter of academic interest but of practical significance to every citizen.
Ultimately, this episode left us pondering the government's role in court cases and the critical significance of judicial independence. By dissecting these legal intricacies, we hope to provide our listeners with a deeper understanding of the BC Constitution Act and its impacts on both political careers and broader societal issues.
Follow this link for links to the cases discussed.
In British Columbia, the Crown Counsel Association negotiates wages, salary hours or work, and working conditions for Crown Counsel.
In 2018, the BC government decided to have Crown Counsel, rather than the police, conduct bail hearings at night and on weekends.
Rather than negotiating with the Crown Counsel Association, the BC government made a unilateral decision to have Crown Counsel work evenings and weekends, claiming that the Attorney General had the power to do this under the Attorney General Act that says the Attorney General can "preside over" the Ministry of the Attorney General.
The Crown Counsel Association grieved this decision, and an arbitrator concluded the government didn't have the authority to act unilaterally or attempt to negotiate with individual Crown Counsel: it had to negotiate the change with the hours Crown Counsel was required to work.
Rather than negotiating, the government appealed the Arbitrator's decision through a judicial review.
The judge on the judicial review found that the arbitrator's decision was transparent, intelligible, justified and reasonable and so upheld it and ordered the government to pay costs to the Crown Counsel Association.
In addition to attempting to bypass collective bargaining with Crown Counsel, the provincial government is also engaged in litigation with the provincial government lawyers who are not Crown Counsel. After these lawyers voted to join a union, the government passed legislation forcing them into a different union they did not want to belong to.
A neighbour dispute over a fence and access to repair it is also discussed on the show.
After several years of refusing to permit access to their property for the purpose of repairing a fence, the neighbour on whose property the fence was located obtained an order pursuant to section 34 of the Property Law Act to permit them to access the neighbour's property for the purpose of maintaining the fence.
This section of the Property Law Act permits a judge to order access to property for the purpose of repairing a building, structure or improvement on adjourning land when the consent of the owner of the adjoining land is refused or cannot reasonably be obtained.
The judge concluded that this section of the act, which was added in 2018, was applicable and that it also allowed the order to permit access on an ongoing basis without the need for repeated court applications.
Finally, on the show, the BC Court of Appeal upheld the eviction of a tenant as a result of them installing a dishwasher without permission and, more significantly, covering a smoke detector up with a cardboard box.
Section 47 of the Residential Tenancy Act permits a tenant to be evicted if the tenant has "seriously jeopardized the health or safety or lawful right of another occupant of the landlord and put the landlord's property at significant risk."
The Court of Appeal rejected the tenant's argument that they had a right to time to fix the problem.
Follow this link for links to the cases discussed.
Many professions such as doctors, engineers, and architects are regulated to ensure that people providing services to the public are properly trained and competent to practice. The need for this is clear: you want to ensure people receive good medical care and the buildings and bridges don't fall down.
The regulation of lawyers has this objective as well: you want to know that you're getting competent legal advice when you hire a lawyer.
Because lawyers are often engaged in work that is in opposition to the wishes of the government it is also important that the regulation of lawyers is independent of the government.
If you hire a lawyer to defend a criminal case, prevent the government from apprehending your children, challenging the validity of a law, or pursue indigenous rights, you do not want the lawyer to be concerned about the professional consequences of acting in opposition to the government's wishes.
This independence is under threat in British Columbia as a result of a proposal to "modernize" the Legal Profession Act in such a way that the provincial government would be able to appoint an increased number of the benchers (directors) that govern the Law Society.
As discussed on the show, the government's immediate motivations to take greater control include a wish to avoid providing adequate funding for legal aid services by creating a system of paralegals with less training than lawyers to provide legal services for the poor.
The issue of adequate legal aid funding has been pursued by the Law Society for many years.
BC is the only province in Canada that imposes a special tax on legal services. The tax was introduced by an NDP government in 1992.
When the tax was introduced it was done for the express purpose of funding legal aid.
Quickly, however, the tax started collecting more money than the government was providing for legal aid and the extra funds were diverted to general revenue.
The government now diverts more than half of the funds collected pursuant to the special tax while dramatically underfunding legal aid services.
The diversion of tax revenue from legal aid has resulted in various challenges by the Law Society including a vote to censure a past Attorney General.
A history of the funding of legal aid in BC, the special tax, and the disproportionate impact the diversion of revenue from the special tax has had on women can be found here.
The government proposal has met with opposition from the Canadian Bar Association, the Victoria Bar Association, the Law Society, and others.
As discussed on the show, one of the elected benchers from Victoria, Paul Pearson gave up his position because he works as Crown Counsel and concluded he couldn't effectively oppose the government initiative while also working for the provincial government.
His statement outlining the import of what has been proposed can be found here.
Follow this link for a transcript of the show and links to the legislation discussed.
Get ready to plunge into the riveting world of legal complexities as we welcome Michael Mulligan, a seasoned barrister and Solicitor, to our podcast. Packed with insights and thought-provoking perspectives, we'll unravel the collateral consequences of committing an offence and the intricate aspects of third-party records in criminal cases. Mulligan guides us through the maze of evidence collection, especially in scenarios where the police don't possess the evidence, as in the case of a prison assault video. We also delve into the privacy concerns surrounding the people featured in such videos.
Moving on, we dive headfirst into the challenging terrain of the prison disciplinary process. Mulligan sheds light on the current system where a standard of "probably" is adopted while punishing inmates, a practice that could be at odds with the constitutional right of presumption of innocence until proven guilty. We debate the fairness of this system, especially for inmates awaiting trial while presumed innocent. To add to the mix, Mulligan paints a vivid picture of the realities of prison life, underscoring how this environment influences legal proceedings. Buckle up for this intense exploration of the legal intricacies within the prison system!
Follow this link for a transcript of the show and links to the cases discussed.
Who says law and property rights can't be riveting? Brace for a legal deep dive unravelling the complexities of the Short Term Rental Accommodations Act in British Columbia. It's not every day you get to compare it to governmental property seizure, but we dare to tread those intriguing waters. We pick apart the legal precedents for compensation in cases where the government appropriates property and delve into the Supreme Court of Canada's ruling in the Annapolis Grouping v. Halifax Regional Municipality case. And that's just the tip of the iceberg!
We also discuss building permits, how court decisions are interpreted, and even explore the Canlii website for a dose of free case law knowledge. This episode is a must-listen for anyone keen on property rights and the intricacies of the law!
Follow this link for a transcript of the case and links to the cases discussed.
Join us this week where we'll be opening the vault of Canada's legislative past with legal expert Michael Mulligan. Trust us, you won't want to miss this deep dive into the controversial British Columbia Heroin Treatment Act of 1979. Together, we'll unravel the context of the Opioid Crisis of the late 70s and today, investigating the eerily similar circumstances and sobering statistics of both times.
In the episode, we'll have a healthy debate about the implications of the Heroin Treatment Act. By dissecting the act, we'll see the jurisdictional challenges it presented and the public's resistance against mandatory treatment. Not to mention the fascinating parallels between the current Mental Health Act and the Heroin Treatment Act.
But hold your horses; we won't stop there! We'll be shifting gears to discuss the impact of prolonged delays in civil cases, specifically centred around employment disputes. We'll examine two unique cases, both revolving around dismissed employees. You'll hear about their fight for severance pay under the Employment Standards Act and the repercussions of these extended delays on their case outcomes. Whether you're a history aficionado or a legal enthusiast, you're in for an insightful ride as we navigate through Canadian legal history and today's legal hurdles.
Follow this link for a transcript of the show and links to the cases discussed.
Do you feel like you’re reading a different language when you look at legal documents? You’re not alone. We’ve brought in legal expert Michael Mulligan to decipher Bill 34, the Restricting Public Consumption of the Legal Substances Act, and it’s not what you’d expect. This piece of legislation doesn't public drug use anywhere unless someone is first asked to stop by a police officer. Mulligan also sheds light on the process and consequences of seizing substances discovered during these encounters.
But we're not just decoding legal jargon today. We’re also unwrapping the little-known tort of misfeasants in public office and how it’s interpreted by the Supreme Court of Canada. Mulligan walks us through a real-life case of a man hindered by political interference despite crossing all the T’s and dotting the I’s for his run-of-the-river hydro project. This incident serves as a vital reminder that the law should always be upheld, and decisions should be made with fairness and objectivity. This isn't your everyday legal discussion, so get ready to dive into the fine print!
Follow this link for a transcript of the show and links to the cases discussed.
Strap in for a thrilling conversation with Barrister and Solicitor, Michael Mulligan, as we navigate the tricky terrain of family law and indigenous governance. Curious about how the court defines a 'spouse' and how that affects child support? We dissect a case of a former stepfather, compelled to shoulder significant monetary responsibilities for three children, despite the fluctuating nature of his relationship with their mother. Listen as Michael enlightens us about how the BC Family Law Act interprets 'spouse', a definition that might surprise you.
Ever wondered how adoption laws work in British Columbia? We delve into a unique case of a teenager yearning for adoption by his stepmother, and the hurdles he faces due to his biological mother's refusal. To top it all, we also scrutinize a controversial case involving a Canadian First Nations band council charged with misconduct. We discuss allegations of breach of fiduciary obligations, the band's counter-argument, and the broader implications of this case for indigenous communities. This is a rollercoaster ride through some high-stakes legal cases and their wider impacts. So, tune in for some thought-provoking discussions on family, identity, and justice.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Before the introduction of mandatory no-fault ICBC insurance in May of 2021, if someone was killed in a motor vehicle accident, the deceased's family could sue the person responsible for the accident to receive compensation for at least the financial loss of a loved one.
This typically occurred when the person killed had financially supported their children or partner.
In the first case discussed, the parents of a 17-year-old Korean boy who was killed in a car accident were awarded $327,000 based, in part, on expert evidence of the Korean tradition of hyodo duty.
This tradition, which is particularly applicable to the eldest son, was a legal obligation in Korea until the 1990s. It contemplates reciprocity and repayment to parents for the sacrifices they have made and meeting the expectations of parents’ wishes concerning care and old age.
The boy was killed three months before he graduated from high school. While going to school, he worked long hours in his parent's restaurant without a salary and broadly assisted his parents, who spoke limited English.
The judge who decided the case permitted hearsay evidence concerning the boy’s specific statements concerning his concern and care for his parents.
Because the boy’s parents weren’t financially dependent on their son at the time he was killed, the ICBC no-fault insurance system would only have paid for a funeral, grief counselling, and $16,256 in compensation.
One of the profoundly unfair parts of the ICBC no-fault system is that any compensation for lost earning capacity when someone is injured or killed is based on what the person earned at the time of the accident. If, for example, someone is a student when they are injured or killed, any compensation for their inability to work is based on how much they were earning as a student and not what they would have earned once they graduated and started working.
Also, on the show, a case involving First Nations challenging the mineral exploration legislation in BC is discussed.
The Mineral Tenure Act in BC permits people to file a mineral claim over unclaimed Crown land and search for minerals there.
If minerals are found before there could be any commercial mining occurs, further government approval is required.
The First Nations argued that they should be consulted before allowing people to search for minerals.
The First Nations argued that their constitutional rights were violated and that the BC Declaration on the Rights of Indigenous Peoples Act, which attaches a copy of the United Nations Declaration on the Rights of Indigenous People, required additional consultation.
The judge hearing the case concluded that the BC Declaration on the Rights of Indigenous Peoples Act did not create any new legal rights that could be enforced in court but instead set out a government commitment to reconciliation.
Despite this, the judge determined that while the Mineral Tenure Act was not unconstitutional, the government is required to set up a system to consult with First Nations before issuing a mineral claim. The judge allowed the provincial government 18 months to set up a system to facilitate this.
Finally, a case involving an unsuccessful attempt by the BC Legislative Assembly to prevent special constables at the legislature from forming a union based on a claim of parliamentary privilege is discussed.
Follow this link for a transcript of the show and links to the cases discussed.
Buckle up for a wild ride as we navigate the intricacies of some fascinating legal cases on Legally Speaking with Michael Mulligan. He's a barrister and solicitor at Mulligan Defence Lawyers.
First up, a woman, her guinea fowl, and a bylaw that isn’t as black and white as it seems. Discover how this fascinating case hinged on the interpretation of the bylaw and whether guinea fowls are considered poultry, fowl, or exotic birds. Spoiler alert: they're not what you think!
With no time to waste, we discuss two cases involving cannabis retailers on First Nations Reserves. Listen as Michael breaks down the lawsuit where retailers accuse the province of negligence and misrepresentation. Can the province be held responsible for the retailers' losses, or is the relationship too tenuous for a negligence claim to stick? Finally, we discuss an indigenous man who was evicted from his home on the Squamish Nation Reserve without compensation for establishing a marijuana dispensary and other violations of housing policy.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
An analysis of various policy proposals the BC United Party issued concerning the criminal justice system.
The proposals include hiring additional police and Crown, ending the decriminalization of drugs, funding body cameras for all police, opening more courts, and pursuing civil claims against people who traffic drugs that cause death.
Follow this link for a transcript of the show and link to full policy details.
An application to find a union in civil contempt for breaching an injunction against making noise while picketing at three Vancouver Airport Hotels failed because of the wording of the injunction, which only prohibited noise above 75bBA if made by various specified devices.
The evidence demonstrated that the noise was above the prohibited threshold but not if it was produced by specifically prohibited items: drums, microphones, speakers or megaphones.
Also on the show, costs were awarded against a strata corporation that embarked on ill-conceived litigation without a 3/4 majority vote to replace a building roof.
The case confirms that even though one of the owners who were taken to court had a lawyer assist them pro bono, and others were self-represented, this is not a reason to deny costs being awarded.
The reason for this is that costs are not only intended to help pay the legal expenses of a successful party, but they also serve other purposes: deterring frivolous actions or defences, encouraging conduct that saves time, encouraging settlement and the careful assessment of the strengths or weakness of cases.
The judge dealing with the costs award further concluded that the strata corporation's lack of budget to pay costs also had no relevance. If a court order is made to pay costs, and they are not paid, an order could be obtained to remove the funds from the strata corporation's bank account regardless of any budgetary considerations.
Finally, the judge concluded that the owners who were awarded costs would not be required to contribute to the expense incurred by the strata corporation.
Finally, on the show, the BC Court of Appeal has determined that the definition of a "person with a mental disorder" in the Mental Health Act includes someone who isn't displaying symptoms of the mental disorder when their involuntary detention is being reviewed.
The Mental Health Act permits the involuntary treatment of people who have a mental disorder and who are a threat to themselves or others.
The case involved a man with an extended history of paranoid psychosis and self-harming behaviours for which he had been repeatedly hospitalized and certified for involuntary treatment. The behaviours would include cutting and burning himself.
The police had repeatedly taken the man to the hospital for treatment. He would receive antipsychotic medication that successfully prevented self-harm, but once released, the man would stop taking the medication and harm himself again.
The Court of Appeal concluded that the definition of a "person with a mental disorder" should be interpreted in accordance with the purpose of the act and the fact that the symptoms of a mental disorder were being controlled by medication at the time of a review didn't mean that the person no longer met the definition.
Follow this link for a transcript of the cases and links to the cases discussed.
Most criminal offences in Canada involve prohibitions on doing things that would harm others. It is rare that the criminal law will require someone to do something.
An exception to this is the offence of failing to provide the necessities of life.
It is a criminal offence for a list of people, including parents, foster parents, and spouses to not provide the necessities of life.
It also requires anyone who is in charge of someone who cannot withdraw from that situation "by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge" to provide them with the necessities of life.
In the tragic case discussed the Court of Appeal allowed a sentence appeal by the Crown to increase a sentence imposed on a woman who worked as a caregiver for a 55-year-old woman who had Down Syndrome.
The woman with Down Syndrome stopped eating and slowly starved to death. The caregiver, relying on advice from the woman's mother, didn't arrange for medical assistance.
The case was unusual in that the caregiver had no animosity towards the woman she was caring for: they had a good relationship for more than 18 years and she mistakenly thought she was doing the right thing in not arranging for medical assistance.
While the Court of Appeal increased the sentence from a 12-month conditional sentence (house arrest) to a 15-month jail sentence, because the conditional sentence had already been served, the caregiver would not actually be required to go to jail.
Also on the show, a prosecution for criminal contempt for blocking a logging road by sitting on a tall tripod is discussed.
The issue in the case was whether the person sitting on the tripod had been properly served with a copy of the injunction not to block the road.
The police officer involved read a summary of the injunction to the person on the tripod and then left a copy of the injunction on the ground underneath the tripod, where it remained for an hour and a half until the police returned and arrested the man.
The court concluded that the man on the tripod had been properly notified of the injunction as it was drawn to his attention and he could have climbed down from his perch to read it but chose not to.
Finally, on the show, the war crimes prosecutions that took place in Nuremberg Germany following WWII are discussed.
The trial represented an alternative to summarily executing the prisoners as Stalin wanted to.
The trials involved four judges. One each from the USA, the UK, France and Russia.
The opening statement by the lead US Prosecution, Robert Jackson, began with this:
"The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason."
While most of the accused were convicted, and many of them were sentenced to death by hanging, three of the accused were found not guilty.
Follow this link for a transcript of the show and links to the cases discussed.
What if you found yourself at the receiving end of a judicial system, prosecuted for a fatal accident with no evidence of intoxication, excessive speeding, or aggressive driving? This is the tragic reality for a 21-year-old driver with no history of bad driving or criminal record, facing a heart-wrenching sentencing decision. Join us as we unravel this case with Michael Mulligan, with Mulligan Defense Lawyers. Michael helps us explore the implications of prosecuting cases where there are no apparent signs of bad driving, the delicate balance between law and justice, and the societal impact of such sentencing decisions.
Delving further into the world of complicated legal concepts, we navigate the labyrinth of vicarious liability in the context of a class action against ICBC.
The case involved an employee of ICBC selling personal contact information associated with the license plates of cars parked at the British Columbia Justice Institute where police and other public safety employees are trained.
The information was used to target the houses of the vehicle owners including with arsons and shootings.
Mulligan unravels the factors courts consider in these instances and the implications of ICBC's appeal and whether is was wise for ICBC to attempt to avoid liability in the circumstances of this troubling case.
We also shed light on an intriguing case of a man appealing his sentence, dissecting the elements that come into play when a person asks for bail pending the hearing of a sentence appeal.
Unlike a person seeking bail prior to trial, someone who has been plead guilty and been sentenced no longer enjoys the presumption of innocence.
This episode promises to leave you with a fresh perspective on the intricacies of the law and the delicate balance between justice, liability, and compensation.
Follow this link for a transcript of the show and links to the cases discussed.
The Supreme Court of Canada has upheld the double murder conviction for a man who insisted on representing himself at trial. He was so disruptive that the trial judge removed him from the courtroom multiple times and then shut off his microphone on the closed video connection he had to the courtroom.
The accused in the case would not ask questions of witnesses or make submissions and would, instead, express various conspiracy theories about the FBU, the U.S. Army, and mind control.
The trial judge eventually appointed an amicus to ensure a fair trial for the man. An amicus is a lawyer a judge appoints to assist with a trial. Importantly, they are not a lawyer for the accused person.
The Supreme Court of Canada confirmed that trial judges have broad discretion to appoint an amicus, and the judge can determine their role.
In this case, the amicus was appointed to ask questions of the Crown witnesses so that the jury could hear an alternative to the prosecution's version of the case.
The Supreme Court of Canada concluded that there wasn't a miscarriage of justice when the judge didn't ask the amicus to make a closing submission to the jury after the accused would only talk to the jury about various conspiracy theories, telling the jury that "the FBI understands and believes [his] testimony, understands the situation at hand, the breached of national security."
Also, on the show, a case involving a sailboat that broke away from its morning, sunk, and was subsequently recovered and disposed of by the Bowen Island Municipality is discussed.
The man who owned the boat successfully sued the municipality for disposing of the wrecked boat because the municipality didn't get permission from the Receiver of Wreck.
Pursuant to the Canada Shipping Act, someone who takes possession of wreck must report it to the Reciever of Wreck and then do what the Receiver of Wreck directs.
In this case, the sailboat wreck was disposed of without permission.
The boat owner had claimed $95,000 but only received $5,000. There were two reasons for this. First, the owner's only evidence about the value was based on his estimate, which included the value of his labour working on the boat. Second, many of the lost things, such as upholstery, clothing and bedding, were lost because the boat sank and not because the municipality disposed of the wreck pulled up from the seafloor.
The trial judge also took some issue with the boat owner's credibility because, in a previous case involving the same boat, he claimed that he did not own the boat and that it belonged to his sister.
Finally, a case involving the administration of an estate is discussed on the show.
Someone administering an estate has a fiduciary obligation to the estate's beneficiaries: this means that decisions need to be made in their best interests.
In this case, the administrator was denied permission to purchase a property owned by the estate for less than its appraised value. This kind of self-dealing is prohibited, except in rare circumstances, unless all of the beneficiaries provide fully informed consent.
Follow this link for a transcript of the case and links to the cases discussed.
Starting in 2012, the Gabriola Island Local Trust started a legal effort to have an elderly couple remove a seawall that protects their waterfront property because it was less than 30 meters from the ocean.
At a trial of the matter, the Gabriola Island Local Trust lost the case because the judge concluded there was a common-law right to protect property from erosion.
The Island Trust didn't like that outcome and so appealed to the BC Court of Appel, which eventually overturned the first judge's order concluding that the Province of BC had authority, that it delegated to the Island Trust, to prohibit the seawall regardless of the impact on erosion.
Following two additional years of litigation, the seawall was still in place and the Island Trust asked the BC Court of Appeal to start imposing fines for civil contempt of the order.
During the intervening time, the wife who co-owned the property with her husband was diagnosed with dementia and passed away. Her 87 year old husband has numerous physical ailments and the couple's adult daughter had moved back to BC from Ontario in an attempt to help with the seawall issue.
The daughter obtained an environmental and geotechnical assessment report which indicated that removing the seawall could cause environmental harm to the shoreline and would require the removal of several mature trees which had roots that had grown into the seawall.
Unfortunately, the BC Court of Appeal judge dealing with the case concluded that the court no longer had any authority to change the order that required the seawall to be removed.
The daughter then approached 10 different contractors to have the seawall removed. All but one denied to do the work and the one that did attend concluded his equipment wasn't adequate for the job.
The daughter then tried to remove the seawall herself using a sledge hammer and jackhammer but was unsuccessful. She concluded the concrete structure was "about as strong as the Great Pyramid of Giza."
As a result of all of this, the BC Court of Appeal judge imposed a smaller fine than was requested for contempt: $2,500. He also suggested that if the seawall wasn't removed by the end of October there could be another $7,500 fine imposed.
How the case of the immovable seawall plays out may depend on the continued health of the remaining 87 years old owner. The order for removal was made against only his late wife and him.
Also, on the show, an ongoing case of an Iranian Refugee who escaped that country and came to BC in 1995 is discussed.
The man was successful and, in 2019 was able to purchase a home in West Vancouver for $6.6 million.
The man had applied to become a Permanent Resident of Canada on three occasions, with the last application being filed in January of 2017.
Because it took the government until February of 2022 to grant him Permanent Resident Status he was changed $1.32 million pursuant to the BC property speculation tax that is intended to discourage people from other countries speculating in BC real estate.
The legislation that imposes the tax requires it to be applied to anyone who isn't a Canadian citizen or Prominent Resident.
While the man involved is making a challenging constitutional argument against the tax, the real issue is that it cannot have been intended to apply to refugees who have lived in BC for 24 years.
The case demonstrated the need to amend the legislation.
Follow this link for a transcript of the show and links to the cases discussed.
The episode begins by discussing the decision to discontinue a prosecution arising from a Nanaimo business owner who gets shot after trying to retrieve his stolen property from a homeless camp.
Crown Counsel has a duty to only approve and proceed with criminal charges where there is a substantial likelihood of conviction.
In the case involving the business owner who was shot while attempting to recover property from a homeless camp in Nanaimo, further police investigation revealed that the initial allegations made by the business owner were not accurate.
The business owner initially claimed the is attended the homeless camp unarmed, with three other men, to look for stolen property.
Further police investigation revealed that the business owner attended with six or seven other men and that he and others in the group were armed with batons, a 2x4, and bats of broomsticks. They were also wearing protective gear and gloves with hardened knuckles.
The police investigation also uncovered a video of the business owner hitting a camper in the head with a baton. The business owner had also thrown a camper and his girlfriend down an embankment.
The business owner stopped operating with the police.
The new information uncovered by the police made it clear that self-defence would be a real issue at trial. Where self-defence is an issue, the Crown would need to prove, beyond a reasonable doubt, that it was not applicable.
Given the inaccurate report made by the business owner and the evidence uncovered by the police that the business owner was armed and had hit a camper on the head with a baton and thrown two people down an embankment, the Crown concluded there was no longer and substantial likelihood of a conviction for an offence relating to shooting him.
Also, on the show, two separate pieces of litigation between the BC Government and virtually all of the lawyers who work for the government are discussed.
The first case arises from a dispute between the BC Government and the Crown Counsel Association. This case involves the obligation of the government to negotiate with the Crown Counsel Association over the terms of employment for Crown Counsel, assigned to conduct bail hearings on weekends and holidays.
Following the expiry of an agreement with the Crown Counsel Association, the BC Government took the position that it could unilaterally dictate the terms of employment. The Crown Counsel Association took this issue to arbitration and won: the Arbitrator ordered the government to negotiate.
Not liking this result, the BC Government is attempting to get a judge to overturn the arbitrator's decision rather than engaging in negotiations.
The second case discussed involves virtually all lawyers working for the BC Government who are not Crown Counsel. These lawyers voted overwhelmingly to join a union called the British Columbia Government Lawyers Association.
The government didn't like the idea of these lawyers having their own union, so it passed legislation forcing them to join a union called the Professional Employees Association.
The lawyers involved didn't want to be a part of this union, and the union, for its part, didn't want to represent a group of people who didn't want to join it.
This has resulted in the British Columbia Government Lawyers Association suing the BC Government on behalf of the government lawyers alleging that forcing membership in the unwanted union violates the constitutional right to freedom of association guaranteed by section 2 (d) of the Charter.
Follow this link for a transcript of the show and links to the cases discussed.
In British Columbia, it's illegal to produce milk and sell it to anyone other than the Milk Marketing Board.
The Milk Marketing Board sets wholesale prices, intended to guarantee a profit for milk farmers, and sets quotas for how much milk a farmer can sell.
Farmers who produce more milk than their quota can be required to dump it down the drain.
As a result of this system, consumers in British Columbia pay 25 - 30 % more for milk than it costs in the United States.
Since 2022, milk prices have been increased three times and retail prices have risen by 15%.
To preserve this system the Milk Marketing Board conducts surveillance of farmers to ensure they don't try to sell any extra milk.
In the case discussed the Milk Marketing Board conducted 19 days of surveillance on a single farmer and determined that he had been selling extra milk to someone else.
The Milk Marketing Board imposed a $195,184 fine on the farmer and then tried to cancel his quota three days after he filed an appeal of the decision.
On appeal to the BC Farm and Industry Review Board, the fine was reduced to $3,000 and the application to cancel the farmer's milk quota was denied. The farmer was ordered to pay $33,000 to cover the cost of the investigation and surveillance.
Unhappy with this outcome, the Milk Marketing Board appealed again and was successful in having the case sent back to the Review Board to consider a higher fine.
Also on the show, a lawsuit alleging that Roundup caused a man's cancer is discussed.
The man's legal argument is a novel one: he has sued three retailers who sold him Roundup over a 30-year time period based on an alleged breach of the Sale of Goods Act.
The Sale of Goods Act requires goods to be fit for their intended purpose and the man is alleging that if the herbicide caused his cancer it didn't meet this requirement.
The man suing the retailers filed a request to have the case decided by a jury. This was opposed by the defendant retailers, who alleged that the case involved a complicated legal question and that the scientific and medical evidence would be too complicated for a jury. The judge hearing the case agreed with this argument so the issues will be decided by the judge alone, without a jury.
Finally, human rights case involving a teacher from Ontario who applied for a licence to work in BC is discussed.
Following the teacher's application, concerns arose with respect to his ability to communicate in English arose and he was asked to take an English exam. He refused to take the test, alleging that it amounted to discrimination based on his ethnic origin.
The human rights complaint and now two appeals have rejected the teacher's claims on the basis that there was no evidence the requirement to take the English exam was motivated by his ethnic origin rather than a concern about his language proficiency.
Follow this link for a transcript of the show and links to the cases discussed.
Do you ever wonder what happens when a small claims lawsuit is baseless?
Unlike in Supreme Court, judges cannot award costs to the successful party in Small Claims Court.
Costs are intended to both cover some of the legal and other expenses related to a court case. They can also encourage the settlement of meritorious claims and discourage needless litigation.
There is, however, a Small Claims Court rule that permits a judge to award a penalty of up to 10% of the amount claimed if someone proceeds to trial with a claim that has no prospect of success. This 10% penalty can be applied to each party that has a baseless claim brought against them.
On the show, a baseless claim made by the purchasers of a home against the couple who sold it is discussed, along with the resulting penalty imposed by the trial judge who concluded the plaintiffs were simply trying to get someone else to pay for renovations they decided to do.
Also, on the show, a claim against Google and Apple is discussed. The small British Columbia company was unable to pursue a claim against the large tech companies alleging an overcharge for advertising because of an arbitration clause included in the online agreement to purchase the online ads.
Large companies often insert arbitration clauses into user agreements to avoid being sued.
Because arbitration can be expensive and requires claims to be made individually, rather than as a class action, these provisions can stop claims completely because they become too expensive to pursue individually.
Lastly, we step into the world of murder cases, and autopsy photos.
Because judges have an obligation to determine if a piece of evidence would be more prejudicial than probative of an issue in a case, they need to determine if gruesome autopsy photos should be shown to a jury.
If, for example, the only issue in a murder case was whether the accused was the person who committed a murder, showing jurors disturbing photos of a dissected body would likely serve no purpose.
If, however, the issue was whether the amount of force used in self-defence was excessive, it might be very important for jurors to see images of a fatal injury.
In the case discussed, the number of photos was reduced by agreement, and the judge ordered that a particularly disturbing photograph that included late stages of the autopsy dissection be cropped to only show the injury at issue in the case.
Follow this link for a transcript of the show and links to the cases discussed.
For most of Canada's history, vagrancy was a criminal offence.
While the wording of the vagrancy laws changed from time to time. As of 1972, there were two different forms of vagrancy.
The first form of vagrancy made it a criminal offence to beg or be found in a public place without apparent means of support.
The second form of vagrancy prohibited people convicted of sexual offences from loitering near parks, playgrounds, school yards or public parks.
The case that ultimately determined the second type of vagrancy was unconstitutional arose from Beacon Hill Park in Victoria. It involved a man previously convicted of sexual offences involving children being found twice near a playground in the park. The man had a camera with a telephoto lens. When he was arrested for vagrancy, the camera was seized. When the film was developed, it included pictures focusing on the "crotch area of young girls playing in the park with their clothing in disarray."
A five-four majority of the Supreme Court of Canada found the second form of vagrancy unconstitutional because it was overly broad.
Vagrancy was subsequently removed from the Criminal Code.
Also on the show: a report from the Judicial Council of BC indicated a dwindling number of applications for jobs as a Provincial Court Judge in British Columbia.
From an average of 37 applications per year, in 2022, only 23 people applied.
Why are potential candidates shying away? Is it because of the less than satisfactory remuneration? For over a decade, the BC provincial government has repeatedly overruled decisions of an independent commission that is supposed to set the salaries for judges.
We draw parallels between the earnings of these judges and those of family doctors and other government officials.
Also on the show is an exploration of the duty-to-defend clause in insurance contracts.
Follow this link for a transcript of the show and links to the cases discussed.
Do you know the ins and outs of the Residential Tenancy Act? Join us for an enlightening conversation with Barrister and Solicitor Michael Mulligan as we uncover a recent court decision involving changes to BC's residential tenancy legislation and how an elderly landlord diagnosed with cancer almost found himself responsible for paying former tenants $34,180.
The elderly landlord had his son helping rent the top part of the home he shared with his wife. When he was diagnosed with cancer, the son provided the tenants with two months' notice to end the rental so that his parents utilize both the upstairs and downstairs of the home to accommodate relatives staying over to assist with caregiving.
The Residential Tenancy Act was amended to permit former tenants to obtain 12 months' rent if they are required to move out and the "landlord" doesn't occupy the property.
The adjudicator who awarded the former tenants the money confused two definitions of who a "landlord" can be. For most purposes, a "landlord" can include someone helping a property owner rent a property. To determine who must move into a property to avoid paying 12 months' rent to a former tenant, however, this term has a different definition.
Most contracts don't end up with disputes in court because both parties to an agreement want to enter into them. As the government has imposed increasing conditions on residential tenancy agreements to assist existing tenants, disputes have increased.
Provisions that can result in large financial awards to tenants, like the one discussed on the show, will likely deter property owners from renting a part of their home in the first place.
But that's not all — we also discuss a court of appeal case where a couple blamed their real estate agent for not providing sufficient warning about the potential consequences of not completing a deal.
If, as in this case, someone enters into a contract to purchase a property and then changes their mind and doesn't complete the deal, they can be liable to pay the seller and difference between what they agreed to pay and what another buyer eventually pays. In the case discussed, that was $100,000.
The effort to shift blame to the real estate agent for not providing a clearer warning about failing to complete the deal was unsuccessful because the would-be buyers made it clear that there was no circumstance in which they would have followed through and completed the deal. As a result, no warning from the real estate agent would have made any difference.
Follow this link for a transcript of the show and links to the cases discussed.
A man who denied being a human being or being subject to laws turned a wrestling match with RCMP officers into a year in jail for contempt of court following days of nonsense arguments, interruptions, and refusals to behave in court.
Find out more as I tackle the case of Rex vs. A Man Known as Cameron Hardy, and explore the bizarre "Free Man on the Land" theory, which suggests that one is not subject to the laws of Canada. I'll also detail the legal basis for the provincial court's authority to punish someone for contempt in the face of the court.
Also, on the show, the reasons a man was found not guilty of being the person who stabbed and threatened security employees in a Campbell River Walmart are reviewed.
Learn how media coverage and social media impacted the case, leading to the security guard's wife giving conflicting statements to the police.
Ultimately, find out why the judge determined that the remaining evidence was not enough to prove beyond a reasonable doubt that a man found near where the property stolen from Walmart was the same person who stole it and stabbed the security employee.
Finally, the unprecedented resignation of Justice Russell Brown from the Supreme Court of Canada is discussed along with the desirability of permitting investigations into allegations of judicial misconduct to continue even if the judge being investigated resigns.
Follow this link for a transcript of the show and links to the cases discussed.
Can you really sue a judge if you're wrongfully convicted? This episode unpacks the intriguing case of a man who attempted to do just that after his conviction was overturned. We dive into the legal constraints surrounding this scenario and examine Lord Denning's view that judges should be able to make decisions without fear of personal liability. Join our analysis of the limits of a judge's editing power on a court-ordered transcript and the accusations levelled against the judge at the second trial.
Switching gears, we explore intoxication's role in criminal law and the complexities of specific and general intent offences. Through the lens of a case involving a man charged with breaking and entering, we discuss the implications of changing the charge after the accused has testified and the fairness of such an approach.
We also tackle the idea of a decision being 'final' and how it can be revisited, delving into a case involving immediate roadside driving prohibition.
Don't miss this captivating exploration of justice, liability, and the intricacies of criminal law.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
What does Canada's Bill C-48 mean for the future of the bail system, and does it truly address the issue of crime and social disorder? Join us for an eye-opening conversation with Michael Mulligan of Mulligan Defense Lawyers as we dissect the implications of this controversial bill and the reverse onus provision it introduces.
We'll examine the cases where the burden of proof shifts from the Crown to the accused, and how this has existed for years in certain scenarios. You'll also gain insight into the politics surrounding Bill C-48 and why it faces backlash from indigenous communities, hunters, and sports shooters. Most importantly, we'll consider whether the bill is genuinely capable of reducing crime or just another misguided policy.
Our discussion wouldn't be complete without touching on the connection between the bail system, deinstitutionalization, and the tragic reality of untreated mental illness and addiction. Let's remember that anger isn't the solution, and it's crucial to look past the surface and understand the root of the problem. Tune in for this thought-provoking episode and make sure to read Bill C-48 for yourself to decide if it's the answer we need.
This week on Legally Speaking with Michael Mulligan:
What's the secret to unlocking more housing supply in municipalities like Oak Bay, Victoria, and Sanich? Today, we uncover the implications of BC Government's Housing Supply Act and what it means for these targeted municipalities. We discuss the process that the government will undergo to set housing targets, including the appointment of an advisor who will act as a "mole" within the municipality, gathering vital information on housing development progress.
As we navigate through the challenges and delays in this process, we also tackle the implications of the Housing Supply Act on the power of municipalities to regulate the building of houses. We weigh the pros and cons of setting legislative time limits on processes such as rezoning and construction project approvals. Don't miss our reflections on the image of provincial officials entering municipalities to write a report on why they are too slow in building houses, and what the next steps ahead may be for the Minister in terms of appointing an advisor and setting a housing target. Join us on this eye-opening journey into the world of housing development.
Follow this link for a transcript of the show and links to the legislation discussed.
This week on Legally Speaking with Michael Mulligan:
Only a tiny percentage of contracts ever end up in court. This is because contracts are intended to be agreements both parties wish to enter.
If, for example, you agree to purchase a home from someone, both you and the seller presumably want to buy and sell the home for an agreed price. Nobody is required to force the home sale to complete as agreed.
For understandable political reasons, contracts to rent homes are often no longer the result of both parties wanting to continue with the agreement.
As renters outnumber landlords, it’s been politically popular to legislate terms of home rental agreements to do such things as limit or prevent rent increases, prevent rental agreements from having an end date or restrict the circumstances in which a landlord can end a rental agreement.
The result of this, combined with high inflation and rising interest rates, is that many renters are not paying the market value of their homes.
This has resulted in a strong financial incentive for landlords to evict tenants, sell properties, or otherwise get out of agreements to which they do not want to be a party.
The BC Government has responded by attempting to impose penalties to force landlords to continue subsidizing rents for existing tenants.
One of the few circumstances in which a landlord can end a contract to rent a home is if they, or a close family member, wish to move into it themselves.
To prevent this exception from being misused, the BC Government has required landlords who end a contract to rent a home for this reason and who do not move into the home “within a reasonable period of time”, to pay the former tenant 12 months of rent.
The substantial amount of money a former tenant might get has resulted in many applications. Between January 1, 2021, and April 30, 2023, there were 2,200 applications.
In the case discussed on the show, the landlord couldn’t move into their home for four months because he received a stop work order from Saanich for some renovations he was doing before moving in. He was required to provide architectural drawings and asbestos testing before completing the renovations.
At an arbitration, an adjudicator awarded the former tenant $22,001.04. This was overturned on appeal to the BC Supreme Court and, eventually, the BC Court of Appeal.
Also, on the show, the BCCA upholds a decision by the BC Review Board to keep a woman who was found not criminally responsible because of a mental disorder in a secure hospital. The woman suffered from treatment-resistant Schizoaffective Disorder, Bipolar Type, complicated by substance abuse.
She had attempted to abduct a 4-year-old child from a bus believing the child was her own. That was not the first time she had done something similar.
She has no insight into her mental disorder and continues to believe that she is the mother of “angel babies” that she needs to get back.
Finally, on the show, the BC Court of Appeal found that a 4-year minimum sentence for manslaughter with a firearm was not “grossly disproportionate” to the appropriate sentence in the case being considered and, as a result, not unconstitutional.
Because the case did not consider other reasonably hypothetical circumstances where someone could be subject to the mandatory minimum sentence, the provisions may need to be revised in a future case.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
The Supreme Court of Canada has created a new, very high hurdle for a judge to dismiss applications in criminal cases summarily without allowing the party making the application to call evidence.
The case that gave rise to the issue involved an application for a stay of proceedings brought by two men found guilty of six murder charges. The trial judge refused to hear an application for the stay of proceedings based on several allegations, including sexual activity between police and witnesses, long-term solitary confinement waiting for trial, and the handling of informant information.
The Supreme Court of Canada found that the judge should have permitted the accused to make the application and that judges can only refuse to hear such applications when they are “manifestly frivolous.”
The term “frivolous” is intended to allow applications that will necessarily fail to be dismissed without hearing them, and that “manifestly” captures the idea that the frivolous nature of the application must be obvious.
The Supreme Court of Canada recognized that an undue amount of court time is often spent determining whether an application should be permitted and that this isn’t appropriate. When determining if an application is manifestly frivolous, a judge must assume that everything alleged occurred and that the most favourable inference from the alleged circumstances would be drawn.
Also, on the show, a claim for wrongful dismissal brought by a manager of a used car dealership is dismissed.
The manager, who was paid more than $25,000 per month, submitted two meal receipts for a total of approximately $250, claiming that they were for meals with other employees when they were, in fact, personal expenses. Despite being given two opportunities to come clean about what he had done, the manager did not. The business owner fired him, indicating that she had lost trust in the manager.
While an employer can fire a non-unionized employee at any time, for any reason, if they do not have cause to do so, they can be required to provide either notice of the dismissal or payment instead of notice.
In this case, the fired manager sued, claiming he was fired without sufficient cause.
The judge hearing the case disagreed. They concluded that lying about the meal receipts and then refusing to acknowledge what he had done when confronted about them did constitute grounds for being fired.
Finally, on the show, the BC Court of Appeal has ruled that the provisions of the Child, Family and Community Service Act that permit social workers unlimited access to private medical records, without a warrant, when dealing with child protection cases are unconstitutional.
The BCCA found that there is a high expectation of privacy in medical records and that allowing social workers to access them to look for things such as treatment a parent might have received for mental health or substance abuse issues was not constitutionally permissible.
The BCCA has allowed the government one year to amend the provisions in question to add adequate procedural safeguards to the provisions in question.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
In 2013, a 28-year-old babysitter, and mother of four, was charged with murder when a 19-month-old drowned in a bathtub.
The case against her was based on the opinion of a pathologist who alleged that “there is no benign explanation” for injuries sustained by the child and that the child had “extensive bruising” that is “typical of abused children.”
The babysitter, who had “Borderline Intellectual Functioning,” agreed to plead guilty to criminal negligence causing death to avoid the possibility of life in prison if she was convicted of murder. She served a year in jail, lost custody of her four children, and became homeless.
The BC Court of Appeal overturned her conviction. It directed a judicial stay of proceedings because it was recently determined that Crown Counsel who prosecuted the case failed to disclose to the babysitter of her lawyer that an investigation into the pathologist conducted by Alberta Justice concluded that there were serious concerns concerning the pathologist’s opinions.
Crown Counsel in BC received the 140-page report from Alberta Justice concerning the pathologist but failed to disclose it to the babysitter of her lawyer as they were required to do.
In addition, it was revealed that the RCMP had received documentation concerning the 19-month-old having been hospitalized a few weeks before the death with a suspected brain infection that resulted in the sudden loss of balance and hypertonia (abnormally increased muscle tone resulting in rigidity). The RCMP did not disclose this material to either Crown Counsel or the defence.
In criminal cases, the police, and Crown Counsel, have a legal obligation to provide disclosure of all evidence in their possession to the defence. Their failure to comply with this obligation resulted in a misarrange of justice and irreparable harm to the babysitter and her children.
Also, on the show, a plan to create twelve “hubs” across BC to address repeat violent offending is discussed.
As described, there are some positive elements to the proposal, including increased funding and plans to improve information sharing.
The news release with respect to the plan does raise concerns because it suggests that the hubs will be comprised of not only police and probation officers but also “dedicated Crown Counsel.”
Depending on how this is implemented, it is a concern. In Canada, Crown Counsel is independent of the police. Police conduct an investigation and then provide a report to Crown Counsel, along with whatever evidence they have collected. Crown Counsel then determines if criminal charges should be pursued.
This system helps guard against tunnel vision and allows for independent decision-making.
It would be undesirable to have Crown Counsel embedded in hubs with the police and probation officers as they would then be called on to make prosecutorial decisions concerning cases where they were part of the investigation.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
For many years, the BC government has paid all lawyers working for it on the same basis as contracts negotiated by the union representing Crown Counsel. Recently the government decided to stop doing this. That decision likely increased support for the rest of the lawyers to sign up to join the BC Government Lawyers Association: 75% did so.
The BC NDP government, whose core support is organized labour, recently introduced legislation entitled the Public Service Labour Relations Amendment Act, 2023. This act is also referred to as Bill-5.
Bill-5 is only half a page long. On the face of it, the bill appears to make some changes to the definition of “employee” in an act called the Public Service Labour Relations Act but it’s entirely unclear what impact this change would have. The Explanatory Note, which is included with Bill-5, is equally opaque.
Without reading and carefully analyzing the Public Service Labour Relations Act, it’s impossible to determine what impact the definition change would have.
The explanation provided by Minister Katrine Conroy when she introduced the bill and when she answered questions about it indicated she did not know or was misinformed about the effect of Bill-5.
When she spoke about it in the legislature Minister Katrine Conroy indicated that Bill-5 would permit the lawyers to have the BC Government Lawyers Association represent them as they wished. This is a position completely consistent with the position you’d expect from an NDP government.
If enacted, Bill-5 would force the lawyers to join a union they don’t want to: the Professional Employees Association.
That union has also said they don’t want a group of people who don’t want to join them being forced to do so.
The foregoing circumstance resulted in a most unusual spectacle of government lawyers protesting on the lawn of the legislature.
Without the benefit of advice from the flock of lawyers on the lawn of the legislature, the BC NDP government seems to have been misled about the effect of the legislation it introduced.
Also, on the show, the BCCA finds youth bail conditions improperly imposed on the show. The trial judge in the case ordered the young person to follow all rules of the house they were living at and to accept medical treatment.
The BCCA concluded that the judge didn’t have details of the house rules, the rules could change, and a failure to comply could result in the young person going to jail. In these circumstances, the condition wasn’t permissible.
The condition requiring medical treatment was also impermissible because, as with adults, a mature youth had a constitutional right not to be ordered to undergo medical treatment without their consent.
Finally, on the show, a class action on behalf of 13 women secretly video recorded in the bathroom at a grocery store is certified against both the manager who did the recording and the corporation that owned the store. Some of the resulting pictures and videos were posted on pornographic websites.
Follow this link for links to the cases discussed and a transcript of the show.
This week on Legally Speaking with Michael Mulligan:
A third charge approval review, ordered by David Eby, comes to the same conclusion as the first two: there is no basis for money laundering charges arising from a large RCMP investigation into cash or casino chips being provided to high-stakes Chinese gamblers.
A long-running public inquiry, also ordered by Mr. Eby, revealed that high-stakes gamblers from China were bypassing Chinese limits on how much money they were permitted to take out of China.
The high-stakes gamblers would transfer money from their Chinese bank account into the Chinese bank account of someone in Vancouver before flying over to gamble. The person in Vancouver would then provide the gambler with casino chips or cash to spend in the casino.
The individuals in Vancouver would charge a fee for this service and end up with money in a Chinese bank account.
As is often the case, the gambler would typically lose the money in the BC casino.
The concern was that the cash or casino chips might have been the proceeds of drug sales or other criminal activity. Permitting cash obtained in this way to be this to be deposited into a bank would be undesirable as it would encourage more criminal activity.
A large RCMP investigation, called E-Nationalize investigated this but found no evidence that the cash being provided to the gamblers was from illegal activity.
Nonetheless, the RCMP sent a report to Crown Counsel suggesting that there could still be proceeds of crime charges on the theory that the people supplying the cash or casino chips in Vancouver didn’t have the correct kind of business licence.
Crown Counsel declined to approve proceeds of crime charges premised on not having a business licence as they concluded there was no substantial likelihood of conviction and no public interest in conducting a long and complicated trial over such a trivial allegation.
Mr. Eby, as Attorney General, directed Peter Juk, the Assistant Deputy Attorney General, to review the charge approval decision as he wanted the charges to be approved.
When this kind of direction is given by the Attorney General, it must be published in the Gazette, as it is direct political interference with a prosecutorial decision. Mr. Eby used a section of the Crown Counsel Act that permitted the publication of his order to be delayed.
Mr. Juk reviewed the charge approval decision made by Crown Counsel in the ordinary way and came to the same conclusion: no charges should be approved.
Again, Mr. Eby was unhappy with this conclusion, likely because he had made money laundering a political issue and had ordered a lengthy and expensive public hearing into it.
Having been told no on a second occasion, Mr. Eby ordered Mr. Juk to hire a lawyer in private practice as a special prosecutor to review the charge approval decision for a third time.
Mr. Eby directed that the special prosecutor should consider a lower charge approval standard of “reasonable prospect of conviction” rather than “substantial likelihood of conviction” and wrote that he believed there was a “strong public interest in conducting a prosecution” on the theory of not having a business licence.
Despite these directions, Chris Considine, the senior lawyer appointed as a special prosecutor, also concluded that charges should not be approved. He released an 11-page explanation of his decision.
Also, on the show, a case involving medical negligence in the context of eye surgery is discussed. The plaintiff ended up with permanent disfigurement and significantly obstructed vision. He was awarded $180,000.
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Unlike in the United States, where property rights are constitutionally protected, there is no similar protection in the Canadian Charter.
Various provinces, including British Columbia, have set up civil forfeiture regimes that permit property to be seized absent any criminal conviction.
Civil forfeiture can occur based on a civil standard of a balance of probabilities, rather than proof beyond a reasonable doubt.
In British Columbia property can be seized if the government can prove that it’s probably the “proceeds of unlawful activity” or an “instrument of unlawful activity”.
In a recent decision, the BC Court of Appeal found that it was permissible for the provincial government to seize property on the basis that it would probably be used, in the future, for unlawful purposes even if there was no evidence that it had been used for unlawful purposes in the past.
While seizing property on the basis that it is “likely to be used to engage in unlawful activity” in the future, on a civil standard of probably, may be constitutionally permissible, the public policy question that should be asked is whether this is fair or appropriate.
When courts review legislation, they are not deciding if a law is fair or a good idea. The standard of review is whether the legislation is constitutionally permissible.
Also, on the show, a case involving a sentence imposed by a judge for manslaughter, after a jury acquitted an accused of murder, but convicted of this lesser included offence is discussed.
The case involved a 74-year-old man, with no criminal record, who shot a roommate who had engaged in frequent violent, threatening and unpredictable behaviour. On the evening in question the roommate had a dispute over rent and said that he would be dealing with the accused at midnight. When, at midnight, the roommate announced that the accused’s time had come, and did not stop, the accused shot and killed him with a revolver.
When a jury renders a verdict, the judge hearing the case needs to make findings of fact consistent with the verdict and sentence the accused accordingly.
In the case discussed, the Crown asked the judge to find that the case was a “near murder” while the defence urged the judge to conclude it was “near self-defence”. The trial judge took a middle position and sentenced the then 77-year-old to 7 years in jail.
The 7-year sentence was upheld on appeal.
Finally, on the show, a man who was blocking a road to prevent logging was acquitted on a charge of contempt of court because the Crown didn’t prove that the man had knowledge of the court order he was alleged to be in contempt of.
The RCMP, who were enforcing the injunction, read only a summary of the injunction to the man before arresting him.
The Crown argued that the doctrine of wilful blindness was applicable. The judge concluded that this was not applicable as there wasn’t evidence to support this. Wilful blindness could apply if, for example, someone plugged their ears or closed their eyes when an injunction was read or provided to them in writing.
The judge hearing the case pointed out that it’s a criminal offence to obstruct a highway for the purpose of compelling another person to abstain from doing anything they have a lawful right to do, and that knowledge of the law is presumed. Because the prosecution was for contempt, rather than breaching section 423(1)(g) of the Criminal Code, the accused was found not guilty.
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Following 7 days of hearings, with 79 pages of notices of application, responses to applications, and pleadings, 13 affidavits totalling more than 500 pages, 67 authorities, and over 90 pages of written submissions, a BC Supreme Court Judge has concluded that the District of Central Saanich did not have authority, pursuant to its Tree Protection Bylaw, to prevent a farmer from clearing trees to expand their farm.
The judge concluded that while municipalities have some authority to regulate tree removal, the Community Charter, which delegated this authority to municipalities, does not permit such bylaws or regulations to prevent trees from being removed to the extent necessary to permit a property owner from engaging in “development to the density permitted” by applicable zoning.
The District of Central Saanich argued, unsuccessfully, that the words “development” and “density” should be narrowly construed so as to apply only to the construction of homes or buildings.
The judge hearing the case concluded that the terms “development” and “density” include more than the construction of homes or buildings and that these terms include things such as the development of a farm to increase crop yields.
As the property owners pointed out, and the judge accepted, one cannot farm in a forest.
Also on the show, a case involving a vulnerable, elderly, woman who signed away her home as part of an unconscionable purchase and sale agreement is discussed.
The woman, who was 84 at the time of trial, was persuaded to sign a transfer of her home after she had moved into an assisted living facility. The sale agreement said that the woman would receive $485,000 but the terms of the sale provided that no payments would be made for 24 months and then, over between 20 and 40 years, she would be paid from profits of a proposed winery.
Two of the people involved in the purchase took the woman to a notary, rather than a lawyer, to have the home transferred.
Unlike lawyers, notaries don’t provide legal advice.
This notary made no inquiries about the transaction, made no inquiries about the relationship between the woman and the men who brought her to the notary's office, made no inquiries about the woman’s capacity, did not recommend legal advice, and made no notes.
The notary charged $50 and executed the document transferring the woman’s home to the would-be wine company.
At trial, the judge found that the notary had breached even the duty of care the notary owed the elderly woman and ordered that the notary pay the woman for the home.
The BC Court of Appeal agreed that the notary had breached his duty of care but found there was insufficient evidence for the trial judge to have concluded the woman would not have signed the paperwork to transfer her home even if she had been told that she should obtain independent legal advice before signing the transfer papers.
The case is a cautionary tale about the risk of harm to vulnerable people when significant transactions occur without proper legal advice.
It’s not likely a coincidence that the men involved in the unconscionable purchase of the home took the woman to a notary to execute the transfer, rather than a lawyer who would be expected to make further inquiries and offer the woman legal advice about what she was being asked to sign.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
A University of Victoria instructor pleaded guilty to criminal contempt for blocking a road by chaining himself to a log.
Other people who had been convicted in similar circumstances have been sentenced to a period of probation with 100 hours of community work service.
Following the man's arrest, his bag, containing $1605 of his camping gear, was “repeatedly run over by a road grader”.
Judges can consider the “collateral consequences” of a charge when determining an appropriate sentence.
As a result, the man’s sentence was ordered to complete only 70 hours of community service: an effective reduction of $53.50 / hour for the run-over camping gear.
Also, on the show, statutory exemptions from paying municipal property tax are discussed.
In British Columbia, municipalities determine their budget and set mill rates for different kinds of property. The mill rates are multiplied by every $1,000 in property value, as determined by BC Assessment.
Because of how this system works, the amount of tax payable by each property owner depends on the relative value of properties and how many properties there are to distribute the tax burden.
Section 220 of the Community Charter includes a list of kinds of properties that enjoy a statutory exemption from paying any property taxes. They include hospitals, schools, graveyards, and property owned by the provincial government. It wouldn’t be sensible if municipalities could impose very high property taxes on the legislature building, for example.
Section 220 (h), however, exempts property owned or leased by religious organizations from paying any municipal tax. The result of this statutory exception is that all other property owners in a municipality are required to pay more in property tax to subsidize religious organizations that are paying nothing.
In addition to the unfairness of requiring all other property owners to subsidize religious organizations, the exemption may be inconsistent with section 2 (a) of the Charter, which provides for “freedom of conscience and religion”. This section has been interpreted to include freedom from being required to engage in religious activity.
In a case called R. v. Big M Drug Mart Ltd., the Supreme Court of Canada held that the Lords Day Act, which required businesses to be shut on Sunday, contravened section 2 (a) of the Charter. This compelled business owners who were not religious or who worshiped on days other than Sunday to close or pay a fine.
There would be a compelling argument that requiring property owners to pay higher property taxes to subsidize religious organizations is unconstitutional.
Finally, on the show, a new BC Court of Appeal decision expanded the scope of how judges should interpret section 718.2(e) of the Criminal Code. This section provides that when sentencing someone, a judge should consider all available sanctions other than imprisonment “with particular attention to the circumstances of Aboriginal offenders.”
The court reduced a sentence from 5 years to 4 years in jail for a Métis man convicted of aggravated assault for an unprovoked stabbing.
The accused in the case had a horrific childhood, primarily because of his non-indigenous stepfather.
The Court of Appeal concluded that the man had a “significantly reduced level of moral blameworthiness” and had no difficulty inferring that “Canada’s colonial history and assimilationist policies played a role in bringing Mr. Kehoe before the court.”
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
In response to political pressure resulting from public disorder and random assaults of strangers, BC Premier Eby announced several policy changes, including some amendments to the Crown Counsel Policy Manual concerning bail.
Much of the social disorder and irrational, random assaults of strangers in urban centres are rooted in the increase in homeless people suffering from mental illness and drug addiction.
In 2012, after many years of downsizing, a large mental hospital called Riverview was closed. It was decided that it would be more humane to treat people suffering from mental illnesses in the community rather than in an institutional setting.
Unfortunately, adequate community treatment for mental illness was never provided.
As a result, many hundreds of people suffering from profound mental illnesses are now left homeless and untreated. At its peak, in the 1950s, more than 4,500 patients lived at Riverview hospital.
Some of the policies announced by Premier Eby are likely to be helpful. One announcement was for additional funding to create more secure hospital spaces for people who are determined to be mentally ill, in need of treatment, and who are a danger to themselves or others.
Unfortunately, to blunt political claims that the social disorder and random attacks on strangers are the results of failing to seek the detention of people once there are arrested and charged with a criminal offence, changes to the Crown Counsel Policy Manual were also announced.
The Crown Counsel Policy Manual is intended to provide direction to Crown Counsel to ensure consistent principled decision-making when conducting criminal prosecutions.
The changes were intended to make the relevant policies sound tougher.
Unfortunately, many of the changes imply that Crown Counsel was not considering relevant things when making decisions on bail. That has not been the case.
In addition, to the extent that the changes create the impression with the judiciary that when Crown Counsel is seeking someone’s detention, it is being done for political reasons rather than because of a reasoned conclusion that detention is appropriate, the changes to the policy may undermine the seriousness with which such submissions are received.
Also, on the show, two new pieces of legislation intended to address a housing shortage are discussed.
Bill 44, the Building and Strata Statutes Amendment Act, 2022, will eliminate the ability of strata corporations to restrict the rental of strata units. It will also eliminate all age restrictions for strata properties, except for 55+ buildings. The changes intend to increase the number of available rental units.
For people who own strata units they do not occupy themselves, the elimination of all rental restrictions will subject owners to an extra “vacancy tax” if the units are not rented. Before the legislation, owners could avoid the vacancy tax if they were not permitted to rent units due to strata rental restrictions.
Bill 43 – the Housing Supply Act, will permit the provincial government to set targets for municipalities to permit more housing to be constructed. If targets are not being met, the legislation permits municipal records to be examined and, ultimately, the provincial government to amend zoning bylaws and issue construction permits.
Follow this link for a transcript of the show and links to the legislation discussed.
This week on Legally Speaking with Michael Mulligan:
British Columbia has had inadequate legal aid funding for family and poverty law cases for many years.
In 1992 the NDP government imposed a special tax on legal services to fund legal aid. Anyone who hires a lawyer pays this special 7% tax that applies to no other professional services.
In 2002 the Liberal government of the day cut legal aid funding by 40% but kept the tax in place. The result was dramatic cuts to family and poverty law services and legal aid clinics across the province being closed. The government did, however, keep the special tax in place.
This has disproportionately impacted women and indigenous people who relied more heavily on the services that were eliminated.
By 2017 the special tax on legal services was raising more than $210 million per year.
By 2022 only $108.6 million of the funds collected by the special tax was being provided to Legal Aid BC.
Rather than stopping the diversion of funds raised by the special tax on legal services, the government has proposed having paralegals, rather than lawyers, assist with family law and other matters for the poor.
This has been resisted by the Law Society, which is the self-government body that regulates lawyers.
One of the core obligations of the Law Society is to ensure that the public is protected by ensuring people providing legal services are properly qualified.
Having unsupervised paralegals providing family law services is a concern because family law can be very complicated, and mistakes can impact important things such as child custody, spousal and child support.
In an attempt to force the use of paralegals, the provincial government has issued an Intentions Paper which proposes giving the government more control over the Law Society by decreasing the number of elected Benchers and increasing the number of Benchers appointed by the government.
Law Society Benchers are similar to a board of directors.
This proposal is of significant concern because the legal profession needs to be independent of the government. After all, lawyers often oppose the government.
Until November 18, 2022, an online survey is open concerning the government’s proposals.
Also, on the show, the Supreme Court of Canada has determined that judges are permitted to impose harsher sentences than what is being requested by the Crown; however, they are required to advise the parties they plan to do this and permit the opportunity for further submissions.
The SCC distinguished cases where there was a disagreement on when the sentence should be from cases where there is a joint submission.
For joint submissions, a judge must do what is requested unless it is so inappropriate that it would bring the administration of justice into disrepute.
Finally, a judicial recount from the municipal in Port Moody is discussed.
The initial machine vote count resulted in a two-vote difference between the two candidates. Feeding some of the ballots through the vote-counting machine resulted in a slightly different result. A further machine recount identified six ballots the courting machine was having trouble reading.
When these ballots were looked at, the intention of the voters was clear. The result of counting the votes property was a tie. Pursuant to the Local Government Act, the tie was resolved by a random draw.
The candidate who was initially two votes behind won the random draw and became the council member.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
All too often, people with serious mental illnesses end up in the criminal justice system when they are not afforded adequate and sustained medical treatment.
In a case discussed on the show, a man who had suffered from multiple mental health issues since he was eight years old was charged with assault with a weapon and aggravated assault after he attacked a relative and an elderly neighbour one day after he was released from jail.
The man suffered from a range of mental health issues, including schizoaffective disorder, bipolar disorder, neurological impairment, traumatic brain injury and the toxic effect of extensive and severe substance use.
For many years he had been convicted of various criminal offences. He was repeatedly incarcerated. He would receive some treatment, be released, re-offend, and go back to jail.
The man first began hearing voices at age 17. He believed that the devil Lucifer had stalked him. He had twice carved “666” into his arm as part of these beliefs and then scratched the numbers out with deeper cuts as he would subsequently become afraid that he could not go to heaven while bearing the marks. For years he believed that by drinking his urine, he could keep evil spirits away. He would also keep feces beneath his bed to trap evil spirits so that he could flush them away.
He attacked an elderly neighbour and his cousin the day after being released from jail because he believed Lucifer had told him they had sexually abused others. He believed that he was an angel working to protect victims of sexual assault.
The elderly neighbour suffered cigarette burns, facial bruising, a broken jaw, and several broken teeth.
The case is a tragic example of the inadequacy of long-term, secure mental health treatment facilities in British Columbia. The legislation to do this exists in the form of the Mental Health Act. What is not available are sufficient, secure, long-term treatment resources.
Putting someone like this man into jail does little to address his lifelong mental health needs and does not protect the public for any longer than each jail sentence.
In the case discussed, the man was initially unfit to stand trial. This means he couldn’t understand basic things, such as the nature of the proceeding.
After seven months of intensive mental health treatment, he was determined to be fit to stand trial.
Then, with the assistance of a lawyer, he admitted that he had committed the offences. The only issue for the judge was whether he should be found not criminally responsible as a result of a mental disorder (NCRMD).
An NCRMD finding can occur when someone is suffering from a mental disorder that prevented them from knowing what they did was wrong at the time.
The judge hearing the case, concluded that the man was NCRMD. As a result, he will remain in a secure mental health facility indefinitely unless he is no longer determined to be a danger.
Also, on the show, an application to unseal documents relating to the investigation of the murder of a Victoria realtor by the name of Lindsay Buziak in February of 2008 is discussed. The application was denied on the basis that the judge concluded the investigation was still active after 14 years and that permitting public access to the material could result in others being placed at serious risk of physical harm.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
In the context of a judicial review of a decision to compel a patient to continue to receive antipsychotic medication against her will for many years, the difference between bail in a criminal case and involuntary treatment pursuant to the Mental Health Act is discussed.
In most circumstances, when someone is arrested for a criminal offence, there is a presumption that they will be released on bail pending their trial.
If people who were accused of criminal offences were routinely held in jail before having a trial, the presumption of innocence would have little practical meaning.
The right not to be denied bail without just cause is not only specified in the Criminal Code but is also a constitutional right.
The circumnutates in which someone can be kept in jail without having been found guilty of a criminal offence are where it is necessary to 1) ensure the person will attend court for their trial, 2) for the protection or safety of the public or 3) to maintain confidence in the administration of justice.
In most cases, when the police arrest someone, they decide it’s appropriate to release the suspect with whatever conditions they believe are appropriate to ensure the person will attend court and not pose a safety risk.
Common conditions would include things like reporting to a bail supervisor, not possessing weapons, not having contact with specified individuals, or attending to specified locations.
It is not lawful to hold someone in jail without a trial or to impose bail conditions for other reasons. Bail conditions, in a criminal case, cannot be imposed to punish an accused, to enforce the treatment of a mental health or addiction issue, or to encourage someone to plead guilty by making them wait in jail for a long time to have a trial.
Because the right to bail is constitutionally protected and central to the presumption of innocence, it is not subject to being changed into a mechanism to force people who are mentally ill or addicted to drugs to get treatment.
There is, however, an alternative system which is premised on helping people who suffer from mental illness and are a danger to themselves or others. This system operated pursuant to the BC Mental Health Act.
When a police officer believes someone is suffering from a mental disorder and is a danger to themselves or others, they can arrest the person and bring them to a hospital for treatment.
If a doctor concludes that someone is suffering from a mental disorder and requires supervision of care in a designated facility to protect the person or others, they can require them to remain for treatment for up to 48 hours.
If someone is to be kept longer than 48 hours, a second doctor must agree that involuntary treatment is necessary. With the approval of a second doctor, a patient can be kept for up to a month.
Beyond a month, there is a process to review the need for continued involuntary treatment. That involves a tribunal made up of a doctor or retired doctor, a lawyer, and a member of the public.
To work, however, the mental health system requires additional resources, including facilities to house and treat people who are determined to need involuntary, secure treatment.
Given the large number of homeless people who are suffering from mental illness and concurrent substance abuse disorders, additional resources of this kind would be much more effective than waiting for such people to commit a criminal offence and then trying to use the criminal bail system to keep them in jail before trial.
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
A dispute over the adoption of a dog named Maddie ended up in court after the woman who “rescued” and sold her tried to get her puppies back to sell.
The dispute involved a woman in Port Alberni who has a business selling dogs that the judge concluded was misrepresented to be a registered non-profit organization called Ziggy’s Rescue.
A family purchased Maddie from the woman for $600 and signed a document entitled Foster and Adoption Contract.
The contract specified that Maddie needed to be spayed, but it turned out she was pregnant, so this wasn’t possible until the puppies were born.
When the woman who was operating Ziggy’s Rescue found out that Maddie was pregnant, she insisted that she get the puppies because she wished to sell them. The woman showed up at the home of the family that purchased Maddie and was screaming, “puppy thieves,” called the police, and yelled, “we will bury you” at the family.
The woman operating Ziggy’s Rescue ultimately sued the family in small claims court, seeking $5,000 in “lost revenue” and to get Maddie back.
The judge hearing the case, concluded that the woman operating Ziggy’s Rescue was not a reliable witness. He found that she had misrepresented that she was operating a non-profit organization when she was operating a business. The judge asked the woman if she declared her income, and she responded, “not at this time,” and that “we will get caught up.”
The judge concluded that various terms in the Foster and Adoption Contract were unreasonable and unenforceable. He also concluded that Maddie’s best interest should be a consideration when interpreting the contract on the basis that “we need to recognize that dogs, and other pets, are not simply “things” like a chair or a car.”
The judge concluded that “The time has come for Maddie to finally know she is in her forever home and that the defendant’s family are made whole.”
Also, on the show, a case involving BC Mink Breeders is discussed. In 2021 the BC government decided that mink farming should be phased out in the province by 2025 based on the risk they pose to public health. There was evidence that mink could catch and transmit COVID-19 and a concern that this could result in a dangerous mutation of the virus.
The Mink Breeders are challenging the decision, alleging that it was unreasonable. To do so, they are seeking access to the evidence considered by the provincial cabinet. The provincial government did not want to disclose this information.
The judge hearing the case concluded that while the concept of public interest immunity can be used to keep sensitive and confidential documents secret, it was not absolute. As a result, the government has been ordered to provide an affidavit detailing what documents it wished to keep secret and on what basis public interest immunity was being claimed for each of them so that the judge can decide what should be disclosed.
Finally, on the show, a case involving a small strata corporation and permission to cross a deck to get to a set of stairs leading to a backyard is discussed.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
In response to criticism from mayors and others, a report entitled A Rapid Investigation into Repeat Offending and Random Stranger Violence in British Columbia was prepared.
The authors of the report, a retired deputy police chief, and an academic, found that in 2021, while there had been a 7.55% reduction in the non-violent crime severity index in British Columbia, there had been a 4.32% increase in the violent crime serenity index.
Part of this was the result of apparently random assault of strangers. In Vancouver, offences of this kind increased by 35% in 2021.
The report concluded that most suspects in these offences had been apprehended previously under the Mental Health Act.
The Mental Health Act permits people to be apprehended and held for involuntary mental health treatment when someone is determined by doctors to be a danger to themselves or others. Predicting this is, of course, difficult and available resources are inadequate.
The report explains some of the history of treatment for people with mental illness in British Columbia. Between 1913 and 2012 there was a facility called Riverview Hospital, located in Coquitlam. It provided treatment for people with mental illness in a secure setting. By 1956, there were 4,300 patients living at Riverview.
Riverview was closed in 2012 and the theory was that psychiatric treatment would become “community based”.
Unfortunately, there have not been sufficient resources provided for community based psychiatric care.
As a result, people with serious mental illness and, frequently, drug additions have ended up homeless or living in temporary shelters.
In 2017 BC Corrections concluded that 75% of people admitted to provincial jails had a mental illness and or a substance use disorder.
The report concluded that the property and violent crime committed by people who are suffering from mental illness and drug addiction could not be meaningfully addressed by longer jail sentences. They concluded that while people who are in jail for longer would prevent them from committing crimes while they are incarcerated, this would only result in a potential “small gain” because the people would eventually be released with the same mental health challenges.
Even if was effective, there is insufficient capacity in jail. All 10 provincial jails in British Columbia had an average of 2,500 prisoners in 2021.
This is approximately the number of people who died of drug overdoses in the same year: 2,224.
In 1956, when there were 4,300 patients in River View, the population of BC was less than 1.4 million. As of 2022, the population is more than 5.2 million.
Many of the recommendations in the report involve the urgent need for additional treatment capacity for people with mental illness and drug addiction. These include the need for Crisis Response and Stabilization Centres, where people could receive immediate help. Such facilities would allow people to walk in for help without long waiting periods. They would also provide the police or paramedics somewhere to take people for immediate help.
The report also suggests that assistance for people on a voluntary basis is created, consideration should also be given to a system of involuntary treatment.
An interesting submission by the BC First Nations Justice Council was released, along with the main report. That submission is critical of some of the report’s recommendations and points out the massive overrepresentation of indigenous people in the justice system, and the systemic reasons for this.
Follow this link for links to the report and legislation discussed.
This week on Legally Speaking with Michael Mulligan:
In 2008 the age at which someone can consent to sexual activity was raised from 14 to 16.
Some exceptions permit people younger than 16 to consent to sexual activity with someone close in age. A 12- or 13-year-old can consent to sexual activity with someone who is less than two years older. A 14- or 15-year-old can consent to sexual activity with someone who is less than five years older.
The close-in-age exceptions do not apply if the other person is in a position of trust or authority towards the complaint or if the complaint is in a relationship of dependency on the other person or is in an exploitative relationship with the other person.
It is also a defence to a charge of sexual assault based on an inability to consent because of age, where the accused person mistakenly believed the complaint was old enough to consent, assuming the accused person took all reasonable steps to confirm the age of the complaint.
What “all reasonable steps” will amount to will depend on the circumstances. If someone looked to be 50 years old, nothing but looking at them would likely be sufficient. If, on the other hand, the complaint looked young and was attending an elementary school, all reasonable steps might include checking ID and making multiple independent inquiries to confirm the person’s age.
In the case discussed, a woman who was 24 or 25 years old at the time engaged in sexual activity with a boy who was, in fact, 15 years old but, according to the accused, claimed to be 18 years old.
The judge hearing the case convicted her on the basis that she needed to make inquiries to confirm the boy’s stated age beyond asking him how old he was.
The woman, who had no criminal record, and was deemed a low risk of reoffending, was sentenced to 5.5 years in jail.
The judge found it would be unfair to male offenders convicted of a similar offence if the woman received a lower sentence than would have been imposed on a male. The judge further concluded that the fact the woman had a 6-year-old son or that she had been sexually assaulted as a child were not reasons to reduce the sentence.
Also, on the show, a case involving the suspension of two elected school trustees is discussed.
The school board in question had 9 members who were divided into two factions on many issued. The majority faction had 5 members and the minority 4.
The majority faction of the board concluded that two members of the minority faction had engaged in a “workplace bullying” of school board employees by statements at meetings and online postings that would cause the employees to be “humiliated or intimidated.” As a punishment, the majority purported to suspend the two members and did not permit them to attend meetings.
The judge hearing the case concluded that the school board had no authority to suspend elected members from attending meetings. She concluded that the School Act, which governs school boards, was a complete code setting out when an elected member could be suspended, and there was no implied authority to do so for other reasons.
Finally, on the show, a case involving a dismissed human rights complaint is discussed. The complainant was fired from his job as a student advisor at the University of BC because he had been using a dating app for gay men to meet people, including 20 university students.
While the student advisor believed that he was discriminated against because of his sexual orientation, he did not have evidence to support this contention. The Court of Appeal concluded that a “mere possibility [of discrimination] … cannot be enough to require a hearing.”
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Non-pecuniary damages are compensation for personal injury losses that have not required the outlay of money. The purpose is to compensate injured people for pain, suffering, disability, inconvenience, and loss of enjoyment of life. They are also referred to as compensation for pain and suffering.
Such damages are distinct from pecuniary damages for things such as lost income, the cost of care or special damages for things like the cost of medication or medical equipment.
In 2002 the BC Court of Appeal, in a case called Brisson v. Brisson, decided that juries shouldn’t be given instructions from the trial judge with respect to what range of non-pecuniary damages should be awarded. The idea was that this should be left for the jury to decide based on the evidence rather than having judges influence this.
When a judge is deciding on the amount of non-pecuniary damages, they would consider how much has been awarded in previous cases to achieve some measure of consistency.
Another factor is that, in 1978, the Supreme Court of Canada, in a series of cases often referred to as the trilogy on damages, capped non-pecuniary damages at $100,000. The purpose of the cap was to reduce the cost of car insurance. The cap has increased in accordance with inflation but remains in place. The maximum amount that can be awarded in catastrophic cases is now approximately $400,000.
Because juries are given no instructions about the cap or what has been awarded in previous cases, it is not uncommon for there to be appeals when a jury award is higher than in similar cases or above the cap.
In the case discussed on the show, a jury awarded a single mother who was injured in a car accident $350,000 in non-pecuniary damages as a result of injuries that persisted for at least ten years, which caused ongoing pain, the loss of ability to physically care for her children or run a daycare business.
On appeal, two of the court of appeal judges hearing the case reduced the award to $250,000. A third judge would have reduced the award to $200,000 while criticizing the lack of guidance provided to the jury.
The public policy question this all raises is who should decide how much compensation is appropriate: juries or judges.
In BC, because of the change to ICBC no-fault insurance, there is no longer any compensation for pain and suffering at all. Someone who is injured would only receive reimbursement for financial losses. Had the injury in the case discussed occurred now, the badly injured mother would have received no compensation other than for her pecuniary losses.
Also, on the show, another split decision from the BC Court of Appeal is discussed. In this case, the court was reviewing a trial judge’s decision in a sexual assault case not to permit evidence about prior sexual activity to be considered.
The case involved a married couple who were in the process of separating after the husband told his wife that he was having an affair. The wife claimed that the husband sexually assaulted her when they were living in separate bedrooms in the home. She told the police that they had engaged in consensual sexual activity the day before the allegation. At trial, she claimed that there had been no sexual activity for two weeks prior to the assault.
One of the Court of Appeal judges found that the accused husband should have been permitted to ask questions about the inconsistency. Two other judges disagreed. As a result of the split decision, the husband will be allowed to appeal to the Supreme Court of Canada.
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Five different legal challenges to COVID-19 restrictions are all dismissed on the same day. Several of the people who launched legal challenges failed to avail themselves of internal legislative review mechanisms before commencing challenges in court.
Before commencing a judicial review, it’s a requirement that someone exhaust legislative avenues to appeal an administrative decision.
Also, on the show, an indigenous man who was sentenced to jail after he plead guilty to burning down a house he owned before he was evicted for failing to pay his mortgage was successful in an application for the appointment of counsel in the Court of Appeal.
In the Court of Appeal, unlike at trial, there is legal authority to appoint a lawyer to help if someone can’t afford to hire a lawyer on their own. Before appointing a lawyer, however, a Court of Appeal judge needs to conclude that the issue being raised has some merit.
In the case discussed, the indigenous appellant had been banished from the reserve he lived on for six months prior to being convicted. The banishment was pursuant to authority delegated by the federal government that permitted the band council to banish someone charged with a criminal offence.
The man is arguing that sentencing him to jail following the banishment amounted to double jeopardy.
Section 11 (h) of the Charter says that “if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again”
Not every corollary consequence of a criminal offence will constitute punishment for the purpose of 11 (h) of the Charter. For example, being fired from your job would not amount to a punishment for the purpose of this section.
The Court of Appeal judge hearing the application for the appointment of counsel found that banishment was a punishment that had traditionally been used for criminal offences. As a result, they concluded that the ground of appeal had merit and ordered that a lawyer be appointed to argue the appeal for the man.
Finally, on the show, the process for requesting a jury in a civil case and applying to cancel a request for a jury is discussed.
Where either the plaintiff or defendant files a notice to have a jury trial, the other party can oppose it on various grounds, including the complexity or length of a case.
In the case discussed, the issue was whether an insurance policy covered damage to the engine of a fishing boat. The insurance company wanted a jury trial, while the boat owner opposed it. The judge concluded that the case concluded that there was no reason a jury couldn’t decide the case.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Promissory estoppel is an equitable doctrine that can protect a claimant’s reasonable reliance on another person’s word. It is intended to avoid unfairness by enforcing promises.
In a case discussed on the show, a judge needed to determine if either promissory estoppel or another equitable doctrine called unjust enrichment should result in a farm being given to a man who had worked on it for many years with the expectation that he would receive it when the owner passed away.
Starting in the 1970s, the farm owner made various remarks that caused the man who worked on the farm without formal pay to believe he would inherit it when the owner passed away. The remarks included things such as anyone who worked on the farm would get a piece one day and that he hoped the man who worked on the farm would be ready to fight for it one day.
Ultimately, the owner of the farm, who never married and had no children, decided to leave it to a neighbour with whom he had a long-term friendship.
To succeed with a claim of promissory estoppel, there are three starting requirements:
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a representation or assurance is made to the claimant, on the basis of which the claimant expects to enjoy some right or benefit over property;
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the claimant relies on that expectation by doing something or not doing something, and that reliance is reasonable in all the circumstances; and
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the claimant suffers a detriment from this reliance, such that it would be unfair or unjust for the party responsible for the representation or assurance to go back on their word.
While the representation or assurance can be express or implied, the judge hearing the case concluded that the remarks made by the farm owner over the years were too ambiguous to make out the claim.
The judge also dismissed the claim based on unjust enrichment. This kind of claim also has three initial requirements:
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the respondent was enriched;
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the claimant suffered a corresponding deprivation; and
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the respondent’s enrichment and the claimant’s corresponding deprivation occurred in the absence of a juristic reason.
The judge concluded that the man who worked on the farm did so based on an informal arrangement whereby the man would provide labour, and the farm owner would reciprocate with occasional gifts or payments without any expectation that the value of the work or gifts would be commensurate.
Also, on the show, a successful claim for defamation based on Google and Yelp reviews is discussed.
The case involved a customer who had a dispute with a small cedar products company concerning the purchase of some building material.
The unhappy customer posted negative reviews on Google and Yelp, making false allegations that the company had defrauded and scammed him when this was not true.
The judge concluded that all the elements of defamation had been proven and awarded that cedar products company $90,000 in damages.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
When someone trespasses on property by building or installing something on it without permission, damages can be awarded. The amount of such an award will depend on the circumstances:
a)nominal damages if the owner had not proven any actual loss
b)actual damages suffered by the owner; or
c)damages equal to a sum that should reasonably be paid by the trespasser for the use of the land.
In the appeal discussed on the show, a neighbour was building a new home and excavated all the way up to their property line to build a basement. The property line and excavation were very close to the adjacent house, necessitating a fence being installed to prevent people from accidentally falling into the hole.
Because the excavation was right to the property line, the fence constituted a trespass onto the adjacent property. It was in place for several months and prevented the neighbours from accessing their backyard from the outside.
While a trial judge had awarded $15,000 for the trespass, this was reduced on appeal to $1,000. The small area of land occupied by the fence had no commercial rental value and the neighbour had already been compensated for the nuisance caused, some flowers that died because they couldn’t be watered and damage to a retaining wall.
Often nominal damages for trespass of this kind will only be $1, but $1,000 was permitted by the judge on appeal.
Also, on the show, the doctrine of Caveat Emptor is applied to a claim based on alleged problems with a house.
The judge deciding the case referred to a law professor’s description of the doctrine: Absent fraud, mistake, or representation, a purchase takes existing property as he finds it, whether it be dilapidated, bug-infested or otherwise uninhabitable or deficient in expected amenities unless he protects himself by contract terms.
While real-estate contracts often include a property disclosure statement, these only reference problems known to sellers and don’t result in a general warranty with respect to the quality of a property.
The plaintiff in the case was described by the judge as a sophisticated real estate investor and a professional engineer who operated a consulting firm specializing in construction defects. His evidence was found by the judge to be unbelievable. This conclusion was, in part, based on the judge’s finding that his claim that the home sellers improperly removed a washer and dryer and replaced them with mould-infested appliances was undermined by photographs taken after the sale was completed depicting the washer and dryer still in place.
Finally, on the show, a case involving the remedy for a finding that police improperly searched a person’s wallet, locating some drugs.
In Canada, when police are found to have breached someone’s constitutional right to be free from unreasonable search or seizure, a judge then needs to determine what the remedy should be.
If a judge concludes that permitting the Crown to use evidence obtained in an unconstitutional way would bring the administration of justice into disrepute, they can exclude the evidence from consideration in a trial.
There is also authority for a judge to grant “such remedy as the court considers appropriate and just in the circumstances.”
In the case discussed, the accused pleaded guilty after the judge declined to exclude the evidence of the drugs located in the wallet. The judge did, however, take the Charter breach into consideration on sentencing and imposed a conditional discharge rather than a seven-day jail sentence the Crown asked for.
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
The British Columbia General Employee Union is picketing government liquor distribution centers. The explanation for this strategic choice can be found in the Liquor Distribution Act, which is the legal basis for how alcohol is sold in British Columbia.
The Liquor Distribution Act creates a government monopoly over alcohol distribution in the province. The legal scheme in the act starts from the proposition that the government acquires ownership of any liquor imported into or created in the province.
By picketing government-owned liquor warehouses, the BCGUE is leveraging the artificial legal monopoly over liquor distribution in BC.
The origin of the Liquor Distribution Branch in British Columbia is prohibition, which existed in the province from 1917 until 1920. The first government liquor store opened on June 15, 1921.
More than 100 years later, we still have a government-owned monopoly distributing all alcohol in British Columbia.
The Liquor Distribution Branch now employs nearly 5,000 people.
The provincial government has recently modelled a system for marijuana distribution after the system of liquor distribution.
Even other highly regulated and taxed products are not distributed and retailed through an entirely separate government-owned system.
Everything from orange juice to cigarettes are distributed and sold without thousands of government employees, separate warehouses, and retail stores.
The 100-year-old model of a government-owned model of liquor distribution creates significant and unnecessary expenses for the government and means that the thousands of people employed in this system are not available to do other work. In a time of acute labour shortages, it would be desirable for these employees could be made available to undertake work in many areas where there are shortages of employees.
Also, on the show, a case dealing with wrongful dismissal and the test for termination vs abandoning a job is discussed.
The case involved a 68-year-old commercial truck driver who had worked for a logging contracting company for more than 15 years when he suffered a medical emergency and required heart surgery.
After being off work for nearly a year, the truck driver recovered, contacted his employer about returning to work, and provided a letter from his doctor confirming he was fit to do so.
The employer indicated they would contact the truck driver about work but never did so.
After four months of waiting, the truck driver took another job which he held for a short time.
The issue for the judge was whether the truck driver was dismissed or voluntarily resigned.
If an employee is dismissed without sufficient notice, they can be entitled to severance pay.
While, in this case, both the employee and employer may have been operating on mistaken assumptions about what the other party intended because of a failure to communicate, the legal test for dismissal is different from the test for voluntary resignation.
For there to be a dismissal, the assessment is objective: did the employer's actions, objectively viewed, amount to a dismissal? For there to be a resignation, there needs to be an objective basis for concluding the employee resigned as well as a subjective intention to resign.
Because of this distinction, the truck driver was found to have been dismissed and was awarded 15 months of severance pay.
Follow this link for a transcript of the show and links to the cases discussed.
The week on Legally Speaking with Michael Mulligan:
When children are believed to be at risk of harm in British Columbia, they can be apprehended by the director of the Ministry of Children and Families and placed with another family member or into foster care.
Pursuant to the Child, Family and Community Service Act, a judge would then need to determine what was in the best interest of the child. This act sets out a list of factors a judge must consider when deciding what’s in the best interest of the child. The first listed factor is the child’s safety.
In 2019 federal government enacted legislation pursuant to the federal government’s constitutional authority with respect to aboriginal people in Canada that also deals with protecting children. The legislation is called An Act respecting First Nations, Inuit and Métis children, youth and families.
The federal legislation takes priority over the provincial legation. It sets out different criteria that judges must consider when determining what’s in the best interests of an Indigenous child. The first criteria are not safety but rather “the child’s cultural, linguistic, religious and spiritual upbringing and heritage”.
In a court case discussed on the show, a judge needed to determine what was in the best interest of four children of a mother who self-identified as indigenous. The woman believed she was indigenous, though her mother, even though the first nation she believed she belonged to, did not recognize either her or her late mother as being a member.
The mother of the apprehended children had experienced a tragic and traumatic childhood. Her father died in a car accident when she was very young and her mother, who was a severe drug addict, died a few years later. She then spent some time in a home described as “unstable and abusive” before she dropped out of school in grade 10 and began abusing drugs and alcohol. She never had a job and survived on social assistance.
The fathers of her four children were not actively involved in their lives, and one of the fathers has a lengthily criminal record with convictions for violence and sexual offences.
One of the apprehended children has physical and cognitive disabilities. That child was born prematurely after its father assaulted the mother while she was pregnant and then refused to bring the mother to the hospital for two days after she when into premature labour.
The children were apprehended due to what the judge described as reasonable grounds to believe the children had been or were like to be physically harmed because of neglect and immediate danger to their health and safety.
Despite these concerns, the judge hearing the case applied the criteria applicable to indigenous children and ordered the children to be returned to the mother with the hope that sufficient social services intervention could keep them safe.
The judge references the harm from the “sixties scoop” and concerns about placing indigenous children with non-indigenous foster families.
Also, on the show, a SCC case involving “public interest standing” is discussed. This concept permits a person or organization to bring a court challenge dealing with an issue that doesn’t directly impact them. In this case, the Council of Canadians with Disabilities will be permitted to challenge BC legislation that permits involuntary psychological treatment.
Finally, a case involving a $2,000 award for nuisance caused by a neighbour who planted “running bamboo” along their property line. The bamboo invaded the property next door and required an underground barrier to be installed to stop it from proliferating.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Section 273.1(1) of the Criminal Code specifies that a person’s voluntary agreement to “engage in the sexual activity in question” is required.
Even where there is consent to sexual activity, it can be legally ineffective in various circumstances, including where the consent is obtained by force, the exercise of authority or fraud.
In 2014, the Supreme Court of Canada decided on a case where an accused secretly sabotaged condoms by poking holes in them. In that case, the sexual activity with the sabotaged condoms was found to have been consented to, however, the consent was ineffective because of fraud.
The Supreme Court of Canada has also found a failure to disclose an HIV infection can amount to fraud when engaging in sexual activity that creates a significant risk of bodily harm.
In the case discussed on the show, the complainant met the accused on a dating app. She indicated in text messages that she only wanted to engage in sexual activity with a condom. After a short meeting, the complaint and accused had sexual intercourse on two occasions.
On the first occasion, the accused used a condom, on the second he did not. The complaint was a willing participant on both occasions; however, she did not realize the accused was not wearing a condom on the second occasion.
The accused didn’t do anything to deceive the complaint on the second occasion: he just didn’t put on a condom.
At trial, the judge applied the earlier Supreme Court of Canada case involving the sabotaged condoms and concluded there was no evidence of fraud.
On appeal, the majority of the Supreme Court of Canada concluded that the “sexual activity in question” which had been consented to was intercourse with a condom and there had been no consent to intercourse without a condom. As a result, a new trial was ordered.
Also on the show, a case dealing with the circumstances a lawyer may not be permitted to quit representing a client is discussed.
There are some circumstances in which a lawyer may quit representing a client, even in the middle of a trial. These would include where a client advises a lawyer that they wish to testify a lie about what happened, or where a lawyer is no longer able to obtain instructions from their client.
Where a lawyer indicates that they wish to quit for ethical reasons a judge is not permitted to make inquiries about this because it might reveal privileged solicitor-client communications.
Where, however, a lawyer wishes to quit representing a client for financial reasons, shortly before a criminal trial, in limited circumstances a judge might require the lawyer to continue. Relevant factors would include whether the accused could represent themselves if another lawyer could assist and if there would be prejudice against others if the trial needed to be adjourned.
In the case discussed, the judge concluded that similar considerations apply to child protection cases, where the government is seeking to apprehend a child.
Because the lawyer was seeking to withdraw because he had lost contact with his client and could not obtain proper instructions there was no basis to require the lawyer to continue with the case.
Finally, on the show, an unsuccessful attempt to claim unjust enrichment by an ex-wife of three years against her former father-in-law on the basis that she claimed to have contributed to paying the mortgage on a house she and her ex-husband had rented from him.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
In Canada, murder can be either first or second degree. A conviction for either kind of murder results in a mandatory life sentence. With first-degree murder, however, a person must wait 25 years before they can even ask for parole. For second-degree, the judge can decide how long someone would need to wait before being allowed to ask for parole, from 10 to 25 years.
The most common murder can become first-degree is when the murder is planned and deliberate.
There are other ways murder can become first-degree, even if it isn't planned. These include the murder of a peace officer, murder committed for a criminal organization, in the courts of a terrorist act, or while committing various serious crimes such as sexual assault or kidnapping, or unlawful confinement.
In the first case discussed on the show, the Supreme Court of Canada concluded that the murder of a rival drug dealer should have been first-degree.
The fact pattern in the case involved the murdered drug dealer being confined in a speeding truck by three other drug dealers. When the truck slowed down, the drug dealer who was being confined in the truck jumped out and tried to run away. He was shot by the accused while he was running away and then shot several more times, killing him.
The Supreme Court of Canada concluded that, even though the deceased drug dealer had managed to jump out of the truck and run away some distance, the murder was still in the course of unlawful confinement and, as a result, should be categorized as first-degree.
Also on the show, and in keeping with the theme of detention, the Supreme Court of Canada concluded that a young aboriginal man’s right to retain and instruct counsel had been breached when the police took him back to the police station to be interviewed for three hours, without telling him about his right to talk to a lawyer, after a team of police officers attended to his house to execute a search warrant.
In Canada, the police have a constitutional obligation to tell someone about their right to a lawyer when they arrest or detain someone. If the person asks to talk to a lawyer, the police are obliged to stop asking questions or attempting to gather evidence from the person until they have been given a reasonable opportunity to talk to a lawyer.
As occurred in the case discussed, police will sometimes attempt to get a suspect to come to the police station for an interview without arresting the person to avoid telling them about their right to a lawyer because a lawyer is likely to tell a suspect in a criminal investigation not to talk to the police.
In the circumstances of the case discussed, including the fact that the police drove the suspect to the police station after showing up at his house to execute a search warrant, the Supreme Court of Canada concluded that the young man had been detained and his right to counsel had been breached.
The Supreme Court of Canada also concluded that when the police subsequently arrested the young man, they breached his right to counsel again by not permitting him to call his father to get help arranging for a lawyer. The police refused the request because the young man had previously phoned legal aid and had a very short conversation during which he was told that he should hire a lawyer.
In Canada, a person who is arrested or detained is not restricted to a single phone call. They must be provided with a reasonable opportunity to retain and instruct counsel and, if they are being reasonably diligent, this may require multiple phone calls, access to phone directories, or even contacting someone, like a parent, to help arrange for a lawyer.
Follow this link for a transcript of the show and links to the cases disc
This week on Legally Speaking with Michael Mulligan:
The British Columbia Medicare Protection Act purports attempts to protect Medicare by prohibiting any doctor from charging any more than what Medicare pays for any service that it covers and effectively prohibiting people from purchasing private insurance for any of these services.
These market interventions, combined with insufficient funding for Medicare, have resulted in the rationing of the services that are available by requiring people to wait for treatment.
While wealthy people can avoid waiting for treatment by traveling to the United States and paying privately, middle-class people are unable to purchase private health insurance and are forced to wait.
A constitutional challenge to the Medicare Protection Act was recently dismissed by the BC Court of Appeal despite evidence that even for the most serious category of medical conditions defined as “patients have severe pain or acute conditions, risk of permanent functional impairment, tumour/carcinoma/cancer/high risk of malignancy, or time sensitivity”, 72.2% were required to wait longer than the maximum acceptable wait time defined by the government.
The legal challenge was brought on the basis that the Medicare Protection Act violated patients' constitutional right to life and security of the person.
Even though the BC Court of Appeal Judges accepted that some patients would die because of the Medicare Protection Act, they were at pains to point out that they did not have the authority to determine if the legislation was good public policy. They could only determine if the legislation was so harmful that it was unconstitutional.
As discussed on the show, the judges hearing the case concluded that while the legislation breached patients' right to life and the security of the person, it did so in a constitutionally permissible way.
It’s likely that the case will proceed to the Supreme Court of Canada.
Also on the show, another member of the Rainforest Flying Squad was sentenced after being convicted of criminal contempt of court for blocking a logging road in violation of an injunction.
As there are more than 400 people being prosecuted for criminal contempt, the series of sentencing decisions that have resulted have afforded interesting insight into the factors to be considered in such cases.
In the case discussed on the show, the trial judge concluded that the fact the accused was convicted following a trial, rather than pleading guilty, was not a significant factor in sentencing.
In addition to the three days the accused had already spent in jail, he was sentenced to 12 months of probation, including 65 hours of community work service.
Finally, on the show, a BC Court of Appeal decision allowing an appeal from a 6-month jail sentence following a conviction for possession of a small quantity of drugs for the purpose of trafficking is discussed.
The trial judge had felt obliged to impose the jail sentence because of earlier Court of Appeal cases which had concluded that this should be the outcome absent exceptional circumstances.
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 2018, two sisters were walking their dogs on Central Saanich Road in Saanich BC when a vehicle struck them. One of the women, and her dog, were killed. The other woman survived with devastating injuries.
The woman who survived spent a year in the hospital. Her injuries included broken ribs, a spinal injury, and damage to an eye. Most significantly, however, was a traumatic brain injury.
She now has a severe impairment of self-awareness, short-term memory, and attention. She is not able to self-regulate, plan, or have a sense of time. She has outbursts and dysregulation, including perseveration, disinhibition, dysregulation of effect, irritability, anger outbursts, and a lack of insight. She is able to read to some extent and can do puzzles with her mother.
Despite all of this, ICBC alleged that the woman who survived did not suffer any injuries arising from the accident. It denied that the man who hit her was negligent even though he was charged and convicted of impaired driving causing death. It alleged that the woman had not followed medical advice and had failed to mitigate her damages.
Because the accident occurred prior to 2021, when no fault ICBC insurance was implemented in British Columbia, the woman was able to go to court and sue.
The vehicle driven by the man who hit the two women did not belong to him. Because of this, the woman who survived was able to sue not only the driver but also the owner of the vehicle.
When a vehicle owner lets someone else use it, the owner can also be liable for injuries and damage caused by the person who borrowed it.
The vehicle was in the process of being purchased from a car dealership by a relative of the man who was driving it.
Because the car dealership was unable to arrange financing it prepared an agreement saying the vehicle would be purchased for cash, even though the relative of the driver who was trying to purchase it clearly had no ability to pay cash. The car dealership let the relative take the vehicle home while it tried to arrange financing to complete the sale.
In British Columbia, the Consumer Protection Act makes consumer contracts void for unconscionability if there was no reasonable probability of full payment of the total price by the consumer.
As a result, the judge hearing the case concluded that the vehicle was still owned by the car dealership at the time of the accident and the car dealership was therefore jointly responsible for the injuries caused. It is likely that the car dealership was insured by ICBC which would explain why ICBC took the position it did in the case.
The judge hearing the case awarded the injured woman $5.5 million, in large part to pay for her care for the rest of her life. Because of her brain injury, she will need to live in an assisted living facility for the rest of her life.
As discussed on the show, it’s troubling that ICBC took the position it did in this case. Had the accident occurred after the no-fault system was implemented in 2021 the injured woman may have been left at the mercy of ICBC.
Also, on the show, another case dealing with government restrictions on suing for injuries in vehicle accident cases is discussed.
The BC government passed regulations limiting the amount that could be paid for medical and other experts in vehicle accident cases to 6% of any award to save ICBC money.
In the case discussed, the judge found the limit to be unconstitutional.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Twenty-five years ago, a man and his family moved into a home they had built in the Highlands with only a temporary occupancy permit. A final occupancy permit was never obtained, and the lack of compliance was noted on title.
As his wife passed away and his children had moved out, the homeowner decided it was time to sell the home.
The homeowner hired a contractor to complete some repairs including work on some badly weathered decks. The agreement to do the work was oral and the scope of the project changed several times.
The contractor was asked to replace two smaller decks completely but, to save money, only replace the decking on a large main deck.
The contractor pointed out to the homeowner that the structure of the main deck was rotten but agreed to continue replacing only the decking.
When the home was listed for sale, a building inspector was called by a real-estate agent and several deficiencies were noted, including the rotten main deck.
The homeowner was upset that the building inspector had attended and demanded that the contractor replace the main deck as his own expense. The contractor refused because he had only been hired to replace the decking and litigation ensued.
Following a three-day trial, the judge concluded that while the contractor wasn’t responsible for the full cost of replacing the main deck, he shouldn’t have proceeded with replacing the decking given the rotten structure. The contractor was ordered to pay for the wasted time and decking material.
Because the homeowner sued in Supreme Court, seeking the full cost of a new main deck, and was awarded only $5,175, he is unlikely to receive costs that would ordinarily be awarded to a successful party because the amount awarded is within the jurisdiction of Small Claims Court.
The legal costs of the three-day trial are likely to have been substantially more that the amount awarded. The contractor represented himself at trial.
Also on the show, the BC Court of Appeal resolved a dispute over an estate that occurred because the deceased didn’t have a valid will.
The BC Wills, Estates and Succession Act has provisions that deal with who should receive an estate when someone dies without a will. If someone has a spouse and no descendants, the estate passes to the spouse.
The central issue on the appeal was whether the man who had lived with the deceased was her spouse.
The Wills, Estates and Succession Act provides that when someone is in a “marriage like relationship” for two years prior to someone’s death is their spouse.
There are a variety of factors that courts have looked at to decide if a relationship is “marriage like”.
The trial judge focused on the fact that the man and woman didn’t engage in a conjugal relation and concluded that the man wasn’t a spouse.
The Court of Appeal disagreed and pointed out that there should not be a checklist of factors and that relationships are diverse.
The man shared a bed with the deceased for three years prior to her death. He took her to hundreds of medical appointments, did the grocery shopping, they shared meals and celebrations together and he testified that he loved her.
While, ultimately, the result is likely to have been in accordance with the deceased woman’s wished, several years or litigation and uncertainty could have been avoided if she had prepared a proper will.
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 in a criminal case does not involve asking the judges hearing the appeal to retry the case. It’s a review of what took place at the original trial.
The Court of Appeal can allow an appeal if the verdict at trial was unreasonable and not supported by the evidence, if there was a wrong decision made by a trial judge on a question of law, or if there was a miscarriage of justice.
When a trial is decided by a judge without a jury, the trial judge would provide detailed reasons explaining how they arrived at their decision. That permits a review of the legal analysis when there is an appeal.
Where, however, there is an appeal from a jury verdict, there are no reasons for judgment so appeals will focus on legal rulings the trial judge made during the trial and the instructions they gave to the jury.
One of the things that juries are commonly told is that they should follow the trial judge’s instructions with respect to the law because, if the judge makes a mistake with respect to the law, that can be reviewed on an appeal.
Even when the Court of Appeal determines that a trial judge made a wrong decision on a question of law, a new trial may not be ordered if the mistake could not have impacted the outcome of the trial. The language used when there is such a finding is that there was “no substantial wrong or miscarriage of justice”.
In the appeal of the Andrew Berry murder conviction, which is discussed on the show, the defence argued that the judge made several legal errors concerning the admissibility of evidence. The Crown’s submissions were that the decisions made by the judge were not mistakes but, if they were, they would not have changed the result of the trial.
Also on the show, an application for a ban on publication of evidence provided to the accused during the criminal contempt prosecutions for members of the Rainforest Flying Squad and others is discussed.
In criminal cases, the Crown is required to provide disclosure of all the evidence gathered by the police. This is an important requirement to help prevent wrongful convictions. In Canada, there have been several instances of innocent people being convicted because exculpatory evidence was not given to them.
When evidence is provided to an accused person or their lawyer it is often referred to as disclosure material.
There is a legal requirement called an “implied undertaking” that prohibits the disclosure material from being used for any purpose other than the defence of the criminal case.
In the case discussed, one or more of the more than 400 people being prosecuted for criminal contempt failed to keep the disclosure material they received confidential, and it ended up in the hands of journalists.
The Crown was successful in applying for an order that the journalists do not publish the contents of the disclosure material unless and until it was used in open court.
Finally, on the show, a man convicted of drug offences and sentenced to six years in jail based on evidence from a disgraced former Victoria police officer is discussed.
The man was connected to the drugs in question based on a key allegedly found by the former police officer that opened a safe in which the drugs were located. The former police officer claimed that he found the key and put it in his pocket before officers assigned to take photographs of the room where he said he found it did so.
The former police officer was subsequently alleged to have engaged in 13 counts of improper disclosure of information, 3 counts of deceit, 2 counts of discreditable conduct, and 1 count of neglect of duty.
Follow this link for the cases discus
This week on Legally Speaking with Michael Mulligan:
Bill C-21 proposes various amendments to the Criminal Code and Firearms Act to restrict gun ownership.
One part of the legislation is a proposal to freeze the sale or transfer of handguns. This has already had the unintended consequence of causing handgun sales to skyrocket in anticipation of the possibility of sales being stopped.
As currently drafted Bill C-21 includes other provisions that would have unintended consequences. These include various automatic and mandatory provisions that would prohibit people from possessing firearms if there are ever subject to a protection order or engage in an “act of domestic violence”.
Protection orders can take many forms. Some protection orders can be obtained “ex parte”. This means that the person against whom the order applies was not present for the application and did not have an opportunity to make submissions to a judge about it.
Automatically prohibiting someone from continuing to possess firearms without affording an opportunity to attend a hearing or challenge the decision is not procedurally fair and would almost certainly have intended consequences.
The proposal to impose automatic prohibitions on firearms ownership based on a person engaging in an “act of domestic violence” is also problematic. This term is not defined in the legislation. Pursuant to the Family Law Act in British Columbia, family violence has been defined to include things inconsistent with the ordinary meaning of violence.
Pursuant to the Family Law Act, family violence includes “unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy” and “intentional damage to property”.
If the undefined term in the legislation was interpreted in a way consistent with the Family Law Act, automatic firearms prohibitions could flow from someone causing some minor damage to property or unreasonably restricting the “financial autonomy” of a spouse.
Much like with mandatory minimum sentences, while automatic and mandatory provisions are politically catchy, they fail to consider endlessly variable human affairs. Discretion and judgment are required to prevent unintended consequences.
Also on the show, the impact of the ICBC no-fault motor vehicle insurance scheme on the case of a protester who was injured when the ladder he was sitting on collapsed is discussed.
The ladder in question was attached to a trailer that was positioned on a highway to block access to a ferry terminal. A person who was stuck in the resulting traffic jam removed a piece of wood that was attached to a rope that was attached to the ladder. A few minutes later the protester, who remained at the top of the ladder to make it more difficult to remove the trailer from the road, fell to the ground when the ladder buckled and collapsed.
A foundation of the no-fault insurance scheme in British Columbia is a provision in the Insurance (Vehicle) Act that prohibits people from suing for injuries they suffer that is “caused by a vehicle arising out of an accident”.
The term “vehicle” is defined to include a trailer.
As a result, the injuries sustained by the protester may therefore have arisen out of an accident caused by a vehicle: the trailer with a tall ladder affixed to it.
The flip side of this is that the injured protester may be able to claim no-fault accident benefits from ICBC.
Finally, on the show, a Court of Appeal decision concerning the quashing of a search warrant for video surveillance footage from a Hells Angels clubhouse is discussed.
Follow this link and a transcript of the show and links to the cases and legislation discussed.
This week on Legally Speaking with Michael Mulligan:
When the divorced father of an adult child with learning disabilities was diagnosed with terminal cancer, he established a trust with $750,000 to provide for his son following his death.
As he had been through an acrimonious divorce, the father was concerned that his ex-wife did not get access to the funds for her own purposes. To prevent this the father made his two sisters trustees with broad discretion to use the funds to assist his son.
The ex-wife, with whom the son lived, had the son sign a power of attorney permitting her to commence a lawsuit on behalf of the son seeking to remove the sisters as trustees and to take over the administration of the trust herself.
A trustee has a fiduciary relationship with the beneficiary of a trust. That means that the trustee must make decisions that are in the best interest of the beneficiary and not themselves.
The ex-wife’s complaints included that the trustees were not paying for everything she wanted them to.
The sisters were concerned about the funds lasting long enough to take care of the son for the rest of his life.
For their part, the sisters offered to have the administration of the trust turned over to a trust company if the judge concluded that was best but did not wish the ex-wife to have control over the funds as that would have been contrary to their late brother’s wishes.
The judge concluded that the sisters had been acting responsibly and in the best interests of the son and that there was no basis to have them replaced as trustees.
Also on the show: brevity in legal arguments is not only good advocacy but, in some cases, as rule.
In the Court of Appeal and the Supreme Court of Canada, there is both a written argument, called a factum, as well as an oral argument. There is a size limit for factums. In civil cases, in the BC Court of Appeal, the limit is 30 pages. If someone wants to file a longer factum, they must obtain permission from a judge.
In the case discussed, an appellant attached a draft 82-page factum to an application for more space. The application was denied. The judge reluctantly permitted the appellant to file a 40-page factum but ordered that they would need to pay costs to the other parties who attended the application.
Finally, on the show, a case involving a financial advisor from Victoria who became involved in a multi-year romantic relationship with a wealthy older client is discussed.
After the relationship ended the financial advisor sought the division of property from her former client and romantic partner on the basis that they had a “marriage-like relationship” of more than 2 years.
Under the BC Family Law Act, if someone is in a marriage-like relationship for at least two years they can be entitled to a share of the couple's property.
A second issue in the case is that the former client asked for repayment of $100,000 he provided to the financial advisor that she used as a down payment on a home.
After considering a range of factors about the relationship, including intimate details of the couple’s sexual practices, living arrangements, and activities, the judge concluded that they were not in a marriage-like relationship.
With respect to the $100,000, when someone claims they received money as a gift they have the burden of proving this. The judge concluded that the financial advisor had not done this and she was ordered to repay the money.
The case also raises important questions about the propriety of a financial advisor engaging in a romantic relationship with a paying client, to whom she owed a fiduciary duty.
Follow this link for the c
The week on Legally Speaking with Michael Mulligan:
The Supreme Court of Canada has found that making people ineligible to even apply for parole for 150 years is cruel and unusual punishment.
In 1967 Canada repealed the Criminal Code provisions that allowed people convicted of murder to be put to death by hanging, except in the case of on-duty police officers and prison guards. These last exceptions were finally repealed in 1976.
The death penalty provisions for murder were replaced by mandatory sentences of life in prison.
As life sentences for murder remain mandatory, the only issue for a judge to decide is the parole ineligibility period.
Being eligible to apply for parole does not mean that someone would be successful in getting parole. The primary issue when someone applies for parole is the safety of the community, and if a prisoner remains a danger, they may never actually receive parole. The ineligibility period simply means that a prisoner could not even ask for parole.
For second-degree murder, parole eligibility can be set at between 10 and 25 years. For first-degree murder, it is 25 years.
Several years ago, parliament amended the Criminal Code to permit consecutive 25-year parole ineligibility periods when someone is convicted of the first-degree murder of more than one person.
The Supreme Court of Canada concluded that prohibiting a prisoner from even applying for parole for longer than anyone might live is cruel and unusual punishment.
Similar decisions were reached in Germany, France, and Italy in previous court cases in those countries.
The Supreme Court of Canada concluded that a jail sentence with no possibility of release is degrading in nature and presumes that the offender is beyond redemption. To ensure respect for human dignity, Parliament must leave a door open for rehabilitation even in cases where the prospect of this is very low.
The court found that the objectives of denunciation and deterrence are not better served by the imposition of excessive sentences and that beyond and certain threshold, these objectives lose all their functional value, especially when the sentence far exceeds the human life expectancy.
Also, on the show, a series of class action cases involving fees charged to merchants for accepting payment by credit card is discussed.
The class action claims had been based on various arguments including Competition Act provisions, civil conspiracy to injure and unjust enrichment.
Ultimately, after more than a decade of work, a settlement was reached and approved by courts in the various Canadian jurisdictions that were involved.
$131 million is available for distribution to businesses that accepted credit card payments any time between March 23, 2001, and September 2, 2021.
To receive funds from the settlement a business needs to file a claim prior to September 30, 2022.
Claims can be filed online at: https://www.creditcardsettlements.ca
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Section 530 of the Criminal Code provides a right to a trial in either English or French. It also requires a judge or justice “before whom an accused first appears” to inform accused people of this right.
If someone requests a trial in French or English no later than the time set for their trial, it is mandatory that this be provided. If a request is made later, a judge has discretion, but this is required to be exercised in a permissive way.
If two or more people are being tried together, they might make elections concerning the official language that they wished to use. In such a case, a bilingual judge or jury would requried.
In a BC Court of Appeal case discussed on the show, a bilingual man, whose first language was French, sought a new trial, after being convicted, because he wasn’t informed of his right to have a trial in French.
In dismissing his appeal, the Court of Appeal pointed to several factors.
The man was bilingual and had no apparent difficulty communicating in English that could have resulted in a need for a judge to make further inquiries concerning the language of the trial.
The man had a lawyer assisting him and no issue concerning the language of the trial was raised prior to the appeal.
The paperwork to attend court the man had been given following his arrest included notice of the right to have a trial in French or English, printed in French and English.
At the first court appearance, where someone should be informed of their right to trial in English or French, the accused man was not present as he had retained a lawyer to appear for him.
The Court of Appeal decision does suggest that, if the preference for a trial in French had been raised prior to the conviction and appeal, there may well have been a different outcome.
Also, on the show, the reasons for judgment in the case of Craig James, the former Clerk of the Legislative Assembly of British Columbia are discussed.
Mr. James was charged with several counts of fraud and breach of trust relating to matters including the payment of a “long service” or “retirement allowance” of $257,988, the purchase and use of a log splitter and trailer, as well as numerous other purchases including clothing.
Mr. James was found not guilty of all the charges he was facing, with the exception of fraud under $5,000 relating to the purchase of two suits, a tie, and a dress shirt.
While the judge found that Mr. James was likely not entitled to the $257,988 he had paid to himself, he had recieved an opinion from a senior lawyer that suggested he might have been entitled to the money. As a result it wasn’t possible to conclude beyond a reasonable doubt that there had been fraud or breach of trust.
The history of the “long service” or “retirement allowance” was that prior to Mr. James taking over as Clerk, the people who served as “table officers” in the legislature had been lawyers in private practice who did this work but did not receive pension, vacation, or other benefits paid to regular government employees. The allowance was intended to make up for this when they retired.
Mr. James did receive the pension, vacation, and other benefits for the entire period of his employment, however, the policy with respect to the allowance was still in place.
The conviction relating to the suits, tie and dress shirt was because Mr. James mischaracterized these expenses to make them look like they related to the uniform he would wear in the legislature. For example, he wrote “tabs” on the receipt for the tie.
Follow this link for the cases discussed and a transcript of the show.
This week on Legally Speaking with Michael Mulligan:
Criminal offences require two things, often described with Latin names: actus reus and mens rea. Actus reus is an intentional physical act. Mens rea is a guilty mind.
We don’t wish to convict people for physical acts that were not intentional: crashing your car when you have a heart attack or tripping and falling into someone else would not be criminal offences, even if someone else was injured.
We also don’t want to convict people who don’t intend to do something wrong. If, for example, a checkout clerk at a store fails to scan something in your grocery cart properly and you walk out of the store without having paid for the item, it would not constitute theft.
Being drunk will not ordinarily provide a defence to a criminal offence. When, however, someone is so impaired by alcohol or drugs that they are no longer capable of voluntary actions, it can amount to automatism. Such a state could result in involuntary movements like those that might result from sleepwalking or someone having a seizure.
The Supreme Court of Canada recently considered a case in which a young man consumed alcohol and psilocybin mushrooms which, according to expert evidence that a trial judge accepted, caused hallucinations and ultimately for him to lose voluntary control over his actions. In this state, the man broke into a house and hit a random woman with a broom, injuring her.
The Supreme Court of Canada found section 33.1 of the Criminal Code, which permitted convictions even where there was no actus reus, or mens rea, because of voluntary intoxication, to be unconstitutional.
The Supreme Court of Canada pointed out that section 33.1 made no distinction between legal and illegal drugs. Someone who had an adverse reaction to an anesthetic and, while incapacitated, involuntarily hit someone could have been convicted of assault because of section 33.1.
The court pointed out that it would be constitutionally permissible to create an offence of criminal intoxication, which would be focused on intentionally getting into a state of extreme impairment and then causing harm, rather than attempting to convict people for physical acts they had no control over.
Also, on the show, in a companion decision to the one referred to above, the SCC clarified the concept of Horizontal stare decisis.
The court system is organized as a hierarchy. There is a Provincial Court, a Superior Court, and a Court of Appeal in each province. The Supreme Court of Canada then hears appeals from all the Courts of Appeal. Lower courts are required to follow the decisions of higher courts in the same province.
The Supreme Court of Canada pointed out that judges are also required to follow the decisions of other judges from the same level of court in their province: Horizontal stare decisis.
This requirement promotes consistent, predictable decision-making.
A judge is only permitted to depart from a legal finding of a previous judge of the same court in the circumstances set out in a BC case dating from 1954: Re Hansard Spruce Mills.
Finally, on the show, the BC Court of Appeal, in a 2 – 1 split decision, has found some impugned provisions of the ICBC no-fault scheme to be constitutionally permissible. The provisions prevent injured people from suing in Supreme Court.
The issues in the case involved the jurisdiction of the BC Supreme Court judges and the lack of independence of the Civil Resolution Tribunal, which has been permitted to make decisions concerning disputes with ICBC, even though it’s not independent of government.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
The leaked draft decision on abortion from the US Supreme Court has raised questions concerning the law in Canada.
For 100 years in Canada, from 1869 until 1969, having or performing an abortion was a criminal offence in Canada.
In 1969 the Criminal Code was amended to permit abortions but only when a committee of doctors certified that a woman’s life or health was in danger. As “health” was not defined, the interpretation of this exception was inconsistent between hospitals.
Dr. Morgentaler was an abortion advocate and openly acknowledged performing hundreds of abortions without the approval of a committee of other doctors. He was repeatedly charged with performing abortions but was acquitted on each occasion by juries.
Juries are not required to give reasons for their verdict and can apply community standards to criminal prosecutions by refusing to convict.
Crown Counsel appealed one of the jury acquittals, and the Quebec Court of Appeal substituted a conviction. This resulted in public outrage and eventually the “Morgentaler Amendment” to the Criminal Code, which, in 1975, removed the authority of Courts of Appeal to enter a conviction where a jury finds someone not guilty. Following this amendment, a Court of Appeal can only order a new trial.
Also, in 1975, Dr. Morgentaler appealed his conviction to the Supreme Court of Canada, arguing that the criminal code law restricting abortion was unconstitutional. Because this was prior to the Canadian Charter of Rights and Freedoms, he was unsuccessful. The Supreme Court of Canada held that the law was valid. This decision was two years after the US Supreme Court decided Roe vs. Wade.
In 1988 Dr. Morgentaler was back in the Supreme Court of Canada, again arguing that the 1969 Criminal Code restrictions on abortion were unconstitutional. This time, he was successful.
The Charter became part of the Canadian Constitution in 1982. As a result, in 1988, a majority of the Supreme Court of Canada found that the abortion offence in the Criminal Code violated section 7 of the Charter, which guarantees that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Conservative governments made two subsequent attempts to pass legislation to restrict abortion. The second attempt passed in the House of Commons but resulted in a tie vote in the Senate. Pursuant to the rules of the Senate, a tie vote does not pass, and, as a result, the new Criminal Code restrictions on abortion did not become law.
As a result, there are no federal laws in Canada restricting abortion, and it is dealt with like any other medical procedure.
Also, on the show, a protester charged with criminal contempt for allegedly breaching an injunction relating to blocking logging in the Fairy Creek area was found not guilty. The Crown must prove that the accused knew about the injunction to be convicted of criminal contempt.
While the injunction was posted on the internet, there was no evidence the accused had seen it.
The man was not physically blocking the road to the logging area. Instead, he crossed the road twice while banging a drum.
The RCMP had read out a summary of the injunction telling people they couldn’t blockade the road. The accused was arrested 15 seconds later.
There wasn’t evidence that the accused had been told the injunction prohibited him from crossing the road.
Finally, the legal approach to assessing the credibility of an accused person in a criminal case is discussed.
Follow this link for links to the cases discusse
There are a relatively small number of people who are responsible for a high volume of property crime and associated public disorder.
There are a large number of police interactions with people committing offences such as shoplifting, mischief, possession of stolen property, possession of drugs, and breaching previous orders.
This has resulted in frustration and a recent letter from BC Urban Mayors complaining about this issue.
The people repeatedly committing offences of the kind described are most often mentally ill, homeless, and addicted to drugs.
Someone in this circumstance is likely to commit offences on an almost continuous basis to get money to purchase drugs.
They will shoplift things to sell, break into cars, homes, and businesses, sell small amounts of drugs to others, and engage in prostitution.
This behaviour causes a great deal of social disorder, impacts many innocent people, and is expensive to deal with.
The solutions to these legitimate concerns have not, however, been identified by the BC Urban Mayors. They have suggested that the problem could be solved by stricter bail conditions, a lower charge approval standard, or exempting police from needing to provide Crown Counsel with all the evidence they have collected in a timely way.
Having mentally ill drug addicts spend more time in jail for the property crimes they commit will not solve the problem. A jail sentence does not cure mental illness or drug addiction. At the end of each jail sentence, the person is released back onto the street to continue the cycle of drug use and offending.
The Urban Mayors further claim that “The solution is not for municipalities to keep adding safety resources – we have been doing that, which has come at the cost of other essential services, programs and infrastructure in our communities.”
One program that has met with some success in reducing the impact of prolific offenders has been the Assertive Community Treatment Program. It involves teams of social workers, police, and mental health professionals assertively monitoring and intervening with prolific offenders often on a daily basis.
A recent request for funding of two additional police officers to work on ACT teams was refused by the municipality of Esquimalt, along with a request for several additional police officers to work in other capacities.
In the City of Victoria, the police department is widely acknowledged to be short-staffed and stretched to deal with high call volumes.
Adequate police resources are not a complete solution, but it is necessary.
In British Columbia, the provincial Offence Act provides authority to compel
chronic alcoholics to undertake treatment. The scheme involves a physician certifying someone as being in need of treatment and a judge confirming the certification after 72 hours.
The scheme, which is now fallen into disuse because of the absence of actual treatment facilities, might be a model for people who are addicted to drugs and engaged in repeated criminal activity to support this.
The first step to permit something like this would be to create secure treatment facility spaces to treat people suffering from drug addiction, which is commonly combined with other mental health challenges.
Additionally, as has already been proposed by the provincial government, the provision of drugs to people who are addicts would both reduce overdose deaths and the large volume of property crimes committed to get money to purchase drugs.
It makes no sense to address drug addiction and mental illness by repeatedly prosecuting people for shoplifting or for breaching conditions ordering them not to possess drugs.
Follow this link for a transcript of the show.
This week on Legally Speaking with Michael Mulligan:
An RCMP officer from Nanaimo is on trial for assault causing bodily harm after he is alleged to have punched a detainee in the eye causing a fractured orbital bone.
The complaint in the case was arrested on her 19th birthday after her friends called the police for help because she was so drunk. The RCMP officer that attended was unable to find a safe place for the woman due to her level of intoxication, so he arrested her for being in a state of intoxication in a public place.
The RCMP officer brought the woman back to the police station to book her into cells for the night so that she could sober up. As the woman was physically resisting, the RCMP officer sought assistance from a second RCMP officer.
While walking down a hallway towards a cell, the drunk woman attempted to resist the two RCMP officers and swung her foot out towards the officer that arrested her. The officer responded by taking the woman down to the ground, on her back. The drunk woman then punched the RCMP officer in the upper body or face and, after several more swings or punches, the RCMP officer punched the woman back, once, causing a fractured orbital bone.
The physical interaction was all captured on video.
In a criminal trial, the Crown goes first calling evidence. This is because the accused person is presumed to be innocent and is not required to prove they didn’t commit an offence.
In the trial of the RCMP officer, after the Crown finished calling evidence, a “no evidence” application was made. In cases with a jury, this can kind of application can also be called an application for a directed verdict.
When this kind of application is made, the judge hearing the case must determine if a theoretical jury could properly convict the accused. If they could not the judge would allow the application and acquit the accused without requiring them to decide if they wish to testify or call evidence.
In the case discussed, the RCMP officer accused was relying on both general self-defence provisions as well as section 25 of the Criminal Code, which provides a special defence for police officers. Section 25 permits police officers to use force that is likely to cause death or grievous bodily harm to a person who has been arrested if they believe it’s necessary to prevent death or grievous bodily harm to themselves or others. The section also permits police officers to use as much force as is necessary for the administration or enforcement of the law if they act on reasonable grounds.
Because, when a no-evidence application is made, a judge must assume that all inferences that could be drawn from the evidence would be favourable to the Crown, the application was unsuccessful in the case discussed. The RCMP office on trial will, therefore, needs to decide if he wishes to testify or call other evidence.
Also, on the show, a 91-year-old father of two adult children tried, unsuccessfully, to undo a transfer of his home into joint tenancy with one of the children.
When a property is put in joint tenancy, if one of the joint tenants dies, the other becomes the owner of the entire property, with no reference to what a will might say.
The adult child refused to respect the father’s wishes to undo the transfer.
Finally, on the show, a judge has concluded that an application for child support for a child who is more than 19 years old must be brought by the child and not the parent on behalf of the child. Child support, after a child reaches 19 years of age, can continue if the child still requires support because of disability, continued education or similar circumstances.
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Section 8 of the Charter provides that everyone has the right to be free from unreasonable search or seizure.
A search conducted by the police, without prior judicial authorization, is presumptively unreasonable.
One of the exceptions to this principle is that police are permitted to conduct searches incidental to a lawful arrest.
If a police officer has reasonable grounds to believe that someone has committed a criminal offence, they are permitted to arrest them.
When arresting someone, a police officer is permitted to search them, and the areas surrounding the person being arrested for safety, means of escape, and evidence of the offence for which the person is being arrested.
In a case discussed on the show, the Supreme Court of Canada considered if the police have the authority to search a person’s home, beyond the immediate surroundings, when arresting someone.
The Supreme Court of Canada concluded that, when arresting someone in their home, they are only permitted to conduct a search, beyond the area immediately surrounding the person being arrested, they must have reasonable grounds to suspect that there is a safety risk that would be addressed by the search and the search, for safety purposes, must be conducted in a reasonable manner, given the high privacy interest in a home.
Also, on the show, a proposed class action against the University of Victoria for failing to refund the cost of parking passes when in-person classes were suspended because of COVID.
One of the claims being made by the student who made the claim was that the contract for the parking pass was “frustrated” because of COVID and the university stopping in-person classes.
For a contract to be frustrated, in a legal sense, there are two requirements:
1.A qualifying supervening event for which the contract makes no provision, is unforeseen and is not the fault of either party, which
2.Causes a radical change in the nature of a fundamental contractual obligation.
Because the 12-month parking pass contract provided that it could be cancelled, for any reason, within the first 4 months, for a pro-rated refund, the judge hearing the case found that provision had been made for intervening events of any kind.
In addition, the judge concluded that the parking pass contract provided only for parking and did not include an implied term that the university would be open for classes. The student was still permitted to park at the university, even if there would be no reason to do so.
As a result, the judge dismissed the claim and ordered the student making the claim to pay costs to the university.
Finally, on the show, a judge dismissed an application for an interim injunction to permit mink ranching to resume in BC.
Because COVID passes easily to and from mink and humans, the province of BC has prohibited their ranching. This easy transmission has the potential to facilitate mutations in the virus.
Despite the potentially irrepealable harm to mink farmers, the judge concluded that deference was required to the government’s efforts to promote the public interest.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Unlike criminal cases, where there is always a next appearance date scheduled in court until a case is completed, civil cases are generally moved along by the plaintiff.
The case discussed on the show involved a civil claim resulting from an apparently defective drop-side crib. The issue was identified in 2009 and resulted in the crib manufacturer recalling the cribs. Several proposed class actions were also filed in different provinces.
In BC, a proposed class action was filed one day after the recall of the cribs was announced.
A couple of years after the BC case was commended, the plaintiff asked the court to be replaced as the proposed representative plaintiff because of family and work time commitments. The judge managing the case denied the application to change plaintiffs, in part because the original plaintiff still had the crib, which the defendants wanted to have examined by an engineer.
Approximately 8 years then passed without any meaningful steps being taken by the plaintiff to move the case forward.
The defendant crib manufacturer eventually applied to have the case dismissed for “want of prosecution”. The test when this kind of application is made involves consideration of the length of the delay, explanations for the delay, an assessment of whether the defendants suffered prejudice and finally the judge deciding if the balance of justice requires the action to be dismissed.
The case discussed was dismissed both because of the amount of time that had passed and the fact that the crib in question had inexplicably been lost, before it was examined by the defendants.
Also, on the show, the lawyer for an accused person in a criminal contempt prosecution relating to the alleged blocking of a driveway at a “tank farm” in Burnaby, contrary to an injunction prohibiting interference with the Trans Mountain Pipeline, asked the judge to take judicial notice that the activity occurred on “unceded indigenous territory” or “indigenous territory”.
In criminal cases, ordinarily, evidence of an alleged fact needs to be called if a party wants a judge to take it into consideration.
Judges can, however, take judicial notice of facts that are clearly uncontroversial without requiring evidence.
To take judicial notice of something a judge must be satisfied that a fact is either: 1) so notorious or generally accepted as not to be the subject of debate among reasonable persons or 2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
While the judge agreed that it’s obvious that indigenous people occupied some parts of BC before Europeans arrived, the assertion that the driveway in question was either “unceded” or “indigenous territory” was not a notorious fact.
The judge rejected the claim that the territorial acknowledgements often used by politicians could be the basis for taking judicial notice of the alleged fact: “In any event, I hardly think that statements by politicians, which may be made for any number of reasons and not for the purpose of court proceedings, can be taken as a readily accessible source of indisputable accuracy.”
While it’s unclear that the claim the driveway in question was unceded indigenous territory will have any relevance to the criminal contempt trial, if the defendant wishes to rely on this assertion, they will need to call evidence to establish it.
Finally, on the show, courts in BC have announced that many of the COVID safety protocols that were put in place at courthouses will be removed as of April 11, 2022.
Follow this link for a transcript of the show and links to the cases discussed
This week on Legally Speaking with Michael Mulligan:
The Criminal Code permits judges to make orders for the forfeiture of the proceeds of crime. When the proceeds of crime are not readily accessible because they cannot be located, have been transferred to a third party, are outside of Canada, or for various other reasons, a judge can order a “fine in an amount equal to the value of the property”.
Where such a fine is not paid, a judge can set a default period in jail.
In the case discussed on the show, a man was convicted of stealing a very large amount of maple syrup from a warehouse in Quebec. Barrels of maple syrup were removed, the syrup extracted, and the barrels returned full of water.
The man sold the stolen syrup for $10 million. Later he paid people who helped with the theft $9 million, leaving him with $1 million.
The legal issue in the case, which ended up in the Supreme Court of Canada, was how much the fine should be. The trial judge, and ultimately the Supreme Court of Canada, concluded that the fine must be in the full amount the man received for the stolen syrup: $10 million. Because of how the section was worded, the fine must be the full amount of the value of the proceeds of crime the man had before paying the people who helped with the theft.
There can only be a reduction in the amount of the fine where other offenders were ordered to pay back a portion of it, or where there was a separate order to repay the money.
As a result, in addition to an 8-year jail sentence, if the man doesn’t pay the $10 million fine within 10 years, he will be subject to an additional 6 years in jail.
Also, on the show, a Supreme Court of Canada case involving elections with respect to trials is discussed.
When someone is charged with a serious offence, by indictment, they have a choice about what kind of trial they wish to have: Provincial Court, Supreme Court, or Supreme Court with a jury. This choice is a significant one and should be made by the accused person, with advice from a lawyer.
In the case discussed, the lawyer for the accused was alleged to have made the election without express instructions from the accused person. Following a conviction at trial, the accused person appealed arguing that he wasn’t permitted to choose what kind of trial he would have.
Ultimately, the Supreme Court of Canada concluded that while the man should have made the decision himself, he didn’t suggest his choice would have been any different from that made by his lawyer at trial. As a result, there was no prejudice to him, and he will not be permitted to have another trial.
Another case discussed on the show involved a claim arising from a woman in BC who suffered a serious blood clot after she used a contraceptive patch.
The manufacturer of the patch, that the woman was suing, argued that her claim shouldn’t be allowed to proceed because she didn’t claim that she read the warnings in the package the patch came in, or that she wouldn’t have used the patch had the warnings included more information about the risks.
When it’s shown that a person would have proceeded with medical treatment, even if they had been told about risks that they weren’t advised of, they may not have a case even if the risk materializes.
In the case discussed, the BC Court of Appeal allowed the claim to proceed on the basis that it would be an issue at trial with respect to what risks should have been included with the patch and that it would not be helpful for the woman to make a self-serving claim that she wouldn’t have used the patch had she been told about a higher risk of a blood clot.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
British Columbia has a special provincial sales tax that applies to all legal bills. It is supposed to be dedicated to funding legal aid. The tax now collects more than twice the amount that is provided for legal aid. The extra, more than $100 million per year, is used for general government revenue and, as a result, the legal aid system in British Columbia is underfunded.
The diversion of the tax revenue has several unfortunate results.
Financial eligibility for legal aid is so low that a single person with a full-time minimum wage job is considered too rich to be helped by legal aid but would be very unlikely to be able to afford legal help.
People with legal problems that were previously covered by legal aid no longer receive any help. These include poverty law and many kinds of family law problems.
Even when legal problems are covered by legal aid, the amount paid to hire a lawyer is so low it can be difficult to find an experienced lawyer willing to help.
A further systemic difficulty with legal aid in BC is that decisions about how legal aid is to be provided are no longer independent of the provincial government, which is often opposed in interest to the people receiving help from legal aid. This has had real implications for how legal aid helps people. For example, the provincial government has authorized legal aid to assist people who are making slightly more than minimum wage, and who are charged with criminal offences, but only if they agree to plead guilty quickly.
Having poor people plead guilty quickly may save the provincial government money, but it is not fair that they only receive legal help if they agree to do this.
Despite all these serious problems, the provincial government recently announced a small increase in legal aid funding amounting to just over $8 million per year.
Amongst other things, the additional funding will support the Child and Youth Legal Centre which provided legal help to young people who are involved in child protection of family law disputes. This will assist judges in considering the wishes of young people when deciding how they should be dealt with in these kinds of cases.
Young people can get this kind of help by calling 1-877-462-0037.
Also on the show, a case involving an application for additional time to appeal a conviction for fraud over $5,000 arising from a guilty plea to cheating at baccarat. Because the man that plead guilty was not a Canadian citizen, he was being deported.
While the man had no previous criminal record and was married with three children who were Canadian citizens, a conviction for an offence for which someone could receive a sentence of 10 years or more makes the person ineligible to remain in Canada on the grounds of “serious criminality”.
In this case, even though he only received a sentence of 90 days, he was still being deported because of the sentence he could have received.
The man’s application for additional time to appeal was refused on the basis that his appeal had no reasonable prospect of success.
Finally, on the show, a man who had his personalized licence plate with his last name, Grabher, was not permitted to renew it after 27 years because it was deemed to support sexualized violence. His application to appeal to the Supreme Court of Canada was refused based on freedom of expression.
Follow this link for a transcript of the show and links to the cases discussed.
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.
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.
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:
- 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.
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:
- 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.
- The accused must reasonably believe that the threat will be carried out.
- There is no safe avenue of escape. This element is evaluated on a modified objective standard.
- A close temporal connection between the threat and the harm threatened.
- 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.
- 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.
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.
This week on Legally Speaking with Michael Mulligan:
In 2003 there was a coastal forestry worker strike in BC. It involved thousands of employees and multiple unions. After three weeks the strike was eventually ended by back-to-work legislation.
One of the impacted union locals, led by Sonny Ghag, was not happy about this. Mr. Singh organized the storming of a sawmill owned by Mainland Sawmills Ltd. during which employees were assaulted, people were threatened, and the mill was forced to close.
The mill owner, and employees who were assaulted, sued Mr. Ghag and the union local that he was the president of. Ultimately, this case was successful. The union local further sued Mr. Ghag, on the basis that he had acted without authorization in organizing the violent storming of the sawmill.
Mr. Ghag ended up owing $437,706.21.
That, however, was not the end of the matter as Mr. Ghag transferred all of his assets to his 18-year-old son, in 2013, declared bankruptcy to avoid paying the judgment.
If someone disposed of property in order to delay, hinder, or defraud creditors, or others, such a transaction can be voided pursuant to the Fraudulent Conveyance Act.
A judge concluded that this was exactly what Mr. Ghag had done. As a result, the transfer of seven properties to Mr. Ghag’s son were voided. The property will now be available to his creditors to collect the unsatisfied judgment.
Also on the show, Johnson & Johnson Inc. was unsuccessful in trying to strike out a claim made by a first nations woman who suffered a blood clot, and stroke, after using an Ortho Evra contraceptive patch.
Johnson & Johnson argued, amongst other things, that a “Black Box Warning” advised the plaintiff, who had a grade 10 education, of the risks of using the contraceptive patch. The warning referend a risk of “venous thromboembolism” and conflicting studies that compared the risk of this to the risk of this compared to using oral contraceptives.
The judge hearing the application concluded that there very much a triable issue with respect to whether or not the warning misrepresented the risk of using the patch.
Finally, on the show, lawyers for Capital City News Group Ltd. are applying to remove or vary, thirty-five sealing orders relating to production orders, search warrants, and other judicial authorizations concerning the investigation of the 2008 murder of Lindsay Buziak, a real estate agent in Victoria, BC.
The lawyers making the application were asking that they have access to the documents, on their undertaking not to disclose them to anyone, so as to permit them to make submissions with respect to their client’s application.
The judge hearing the application refused to permit access, even in this way, referencing in camera evidence that confirmed investigations into the murder remain active and ongoing.
As a result, even though the documents have been provided to lawyers for the Saanich Police Department, and the Province of BC, who are opposing the application, the lawyers for the news organization will need to make submissions without knowing what is in the documents.
Follow this link for a transcript of the show, and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Mr. Eisler was born in 1932. He left school at age 14 and started work as a farmer and shepherd. By age 18 he was working in the Alberta oil fields. By 22 he was a field supervisor and by age 31 he had started his first company.
At age 79 Mr. Eisler was fired by the board of directors of a mining company he started and had worked at for twenty-four years.
Mr. Eisler sued for wrongful dismissal but, sadly, died a few months before the wrongful dismissal trial. After he died, the company claimed that they had cause to fire Mr. Eisler because of events many years earlier.
Mr. Eisler’s executor carried on with the case, succeeded, and had this decision upheld in the BC Court of Appeal. The company had no cause to fire Mr. Eisler.
As discussed on the show, while an employer is permitted to fire a non-union employee without cause, they are required to provide either notice or pay in lieu of notice. Typically, the amount of notice, or pay, would be calculated based on the provisions of the BC Employment Standards Act, or common law principles that would take into account the length and nature of the employment.
In Mr. Eisler’s case, however, he had a written agreement with respect to the terms of his employment that provided for payment if he was fired without cause. As a result, his estate received an award of $72,500 plus costs.
Also on the show, a Vancouver police officer sued for $1.5 million claiming that she was seriously injured in two car accidents.
The judge who heard the case did not believe the police officer. He examined photographs of the vehicles which showed very minor damage and took into account cross-examination of the police officer including on an application form for her job as a police officer where she described herself as “physically fit active with ability to work for long hours”.
In addition to finding the plaintiff police officer to not be a credible witness regarding the extent and longevity of her accident-related pain, the judge also disbelieved the plaintiff’s boyfriend. The judge described the boyfriend’s evidence as overly rehearsed and partisan and found that he plainly embellished the impact of the second accident. The boyfriend, as it turns out, had also been hired as a police officer in Vancouver.
The case demonstrates the importance of cross-examination and testing of claims. Having trials of issues like these with an independent judge is valuable not only for plaintiffs but for defendants, including ICBC.
Finally, on the show, a decision of the Civil Resolution Tribunal is found to be patently unreasonable on judicial review. The judge reviewing the decision concluded that the tribunal “exercised its discretion arbitrarily and on the basis of predominantly irrelevant and/or non-existent facts.”
The case involved a driver who was attempting to review ICBC’s decision that they were 100% responsible for an accident because this would result in their insurance rates increasing.
The Civil Resolution Tribunal adjudicator in the case misunderstand the nature of a civil claim being made by the other driver in the case and wrongly thought that this would resolve the issue of who was responsible for the accident.
Had the Civil Resolution Tribunal decision not been overturned the driver asking for a review would have been left with no way to challenge the ICBC decision concerning who was at fault.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
The Douglas Lake Cattle Company is the largest cattle range in Canada. It is owned by US billionaire Stan Kroenke, who also owns the Colorado Avalanche and the Denver Nuggets, amongst other things. The ranch is so large it completely surrounds two lakes that belong to the Province of BC. For years Mr. Kroenke has been trying to stop people, including members of the Nicola Valley Fish and Game Club, from fishing in the lakes.
The legal dispute concerning the public’s right to access the lakes involves the interpretation of an 1895 Crown grant of land that is now owned by The Douglas Lake Cattle Company.
The grant of land did not include the lakes, but there was a dispute concerning the ownership of a road that gets close to the lakes and a trail from the road to the shoreline.
Until recently the ranch had attempted to block access to the road by putting logs across it.
At trial the Nicola Valley Fish and Game Club was successful. The judge concluded that not only the lakes, and the road, but also the trail, were not included in the land grant and so remained accessible to the public.
In the Court of Appeal, however, The Douglas Lake Cattle Company was successful in persuading the three judges that the trail was included in the 1895 Crown grant of land.
As a result, while the lakes, and the road, are accessible to the public, there is no way to get to the lakes from the road.
In other provinces, there is provincial legislation that permits members of the public to cross over uncultivated land in order to access areas like publicly owned lakes. The British Columbia government should consider whether such legislation should be enacted, as it was urged to do by the trial judge.
Also on the show a recently introduced BC bill entitled the Firearms Violence Prevention Act is discussed. If passed, the legislation would, amongst other things, restrict the sale of “low-velocity firearms” to minors, and permit the impoundment of vehicles that have firearms or other items in them, when the person licenced to have them is not in the vehicle.
Several problems are apparent with the bill, as currently worded, include an error concerning the definition of “low-velocity firearms” which would inadvertently include all firearms, and the absence of an appropriate appeal mechanism for the impoundment of vehicles.
As discussed on the show, hopefully, the errors in the bill will be corrected during the legislative process.
Finally, a case involving a dispute over a will involving section 56 of the Wills, Estates and Succession Act is discussed.
This section provides that, subject to a contrary intention in a will, when spouses separate gifts in a will, and appointments as an executor or trustee, are revoked.
The court case discussed on the show involved a spouse, who separated from the deceased 18 months before his death, arguing, unsuccessfully, that she had not ceased to be a spouse.
In the case, evidence of the separation included a signed separation agreement, payment of child support, and the filing of tax returns by the claimant indicating that she was single.
The case is really a cautionary tale about the importance of updating your will when you are married, or separated, to reflect your wishes and to avoid unnecessary disputes.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
To ensure their independence, Superior Court Judges hold office on good behavior, until age 75, and can only be removed by the Governor General on address of the Senate and House of Commons.
The point of this is that you don’t want judges to be fired when they made decisions that the government doesn’t like.
If you have a dispute with the government, you want to know that the judge hearing the case isn’t worried about being fired if they decide in your favour.
This protection would not be very meaningful if the government was able to transfer decision-making authorly to people who were not independent.
As a result section 96 of the Constitution Act, 1867 has been interpreted so as to restrict the ability of governments to transfer authority over the core jurisdiction of superior courts to other bodies.
As part of a plan to move to a mandatory a no-fault automobile insurance system, the province of British Columbia attempted to transfer authority over claims of up to $50,000, as well as the authority to determine if an injury was “minor”, so as to cap compensation, to a body called the Civil Resolution Tribunal.
Employees of the Civil Resolution Tribunal work on short-term contracts for the provincial government. They have none of the protections afforded judges and could be fired, or not have their contracts renewed if they made decisions which the government didn’t like.
From a fairness perspective, it’s not appropriate to have employees of one of the parties to a dispute making decisions about it.
From a legal perspective, Chief Justice Hinkson determined that the attempt to transfer authority over claims up to $50,000, and the power to determine if injuries were “minor” was unconstitutional because of section 96.
As a result, people who have a dispute about these matters with ICBC will be able to have a judge, rather than a Civil Resolution Tribunal employee, decide.
Also on the show: an example of where the Civil Resolution Tribunal is an appropriate forum to resolve small disputes between private parties: a family was able to avoid paying $4,998.54 for a return Air Canada flight from India which was canceled due to COVID-19. The adjudicator concluded that the contract with a travel agent was frustrated when the return flight was canceled and could not be rebooked in a reasonable period of time.
Finally, the BC Supreme Court dismissed an application for judicial review of a BC Human Rights Tribunal decision which refused to accept a complaint by a Pastafarian and member of the Church of the Flying Spaghetti Monster.
The Pastafarian wished to wear a pasta colander, or a three-cornered hat known as a pirate’s tricorn, for his driver’s licence photo on the basis that he claimed these to be religious headgear.
The BC Human Rights Tribunal refused the complaint on the basis that ICBC was not required to accommodate a practice satirizing religious practices.
The Pastafarian argued that the Church of the Flying Spaghetti Monster was a duly constituted society and in good standing in BC and that neither its constitution nor its bylaws mandate the mocking of religious beliefs or religious practices.
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Several churches in the Fraser Valley have been refusing to comply with COVID-19 health rules and have been conducting in-person services.
The churches have started a legal challenge to the public health orders on the basis that they believe them to be unconstitutional given constitutional protection for “freedom of conscience and religion”.
This, and related constitutional protections, are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
Ultimately, the courts will need to decide if the prohibition on in-person religious services meets this test.
Prior to the matter being decided, the province of British Columbia, and Dr. Henry, asked the Chief Justice of the BC Supreme Court for an interim injunction to order the churches to stop conducting the in-person services, until the case had been decided.
There is a three-part test to determine if an interim injunction should be issued:
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Has the applicant demonstrated there is a fair question to be tried?
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Will the applicant suffer irreparable harm if an injunction is not granted?
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Does the balance of convenience favour the granting of an injunction?
Chief Justice Hinkson determined that while the first two parts of the test for an interim injunction had been met, including a finding that there could be irreparable harm including deaths, the third part of the test had not been met.
His reasons for reaching this conclusion included the fact that the Public Health Act already permits large fines, and jail sentences, to be imposed where orders are not followed, and the fact that British Columbia failed to prosecute people who were alleged to have been intentionally violating a previous injunction to stop blockading the port in Vancouver.
Chief Justice Hinkson quoted from a decision of Justice Tammen who found that the people intentionally breaching the injunction to stop blockading the port were engaged in a direct attack on the rule of law.
Also discussed on the show is a recent BC Court of Appeal decision dealing with the definition of a motor-assisted cycle.
The BC Motor Vehicle Act, and associated regulations, exempt some motor-assisted cycles from the need for insurance and the need for a licence to operate them.
Unfortunately, the rules are dated, and ambiguous.
In the case discussed, the 3 Court of Appeal judges split 2 – 1 on whether a new trial was required.
In order to encourage people to use an alternative, electric, transportation options it would be desirable for the provincial government to update and clarify the regulations to clearly include devices that did not exist when the current regulations were created.
Without clarity, people using newer electric transportation devices may be subject to very large fines where were intended to discourage people from operating large traditional vehicles without insurance.
For links to the cases discussed, follow this link.
This week on Legally Speaking with Michael Mulligan:
What happens when someone, repeatedly, pretends to be a medical doctor, despite repeated injunctions and fines being imposed? They go to jail.
The College of Physicians and Surgeons of British Columbia is responsible for bringing applications to the BC Supreme Court to stop someone who is not qualified from using titles like “Dr.” or “Physician”.
In the case discussed on the show, Ms. Ezzati pretended to be a doctor and performed medical procedures on 18 separate days, on over 30 individuals, despite repeated orders to stop. The judge found that she has caused harm to all of these individuals and exposed them all to the risk of more serious and potentially life-threatening harm.
Ms. Ezzati was found to be in possession of brochures, resumes, and other material, indicating that she was pretending to be a doctor. She failed to pay fines that were imposed and pretended to have COVID-19 to avoid attending a court hearing.
As a result of this conduct, which went on for three years, the judge eventually sentenced Ms. Ezzati to 6 months in jail.
Also, on the show, a recent Supreme Court of Canada case involving the concept of good faith, in the context of contracts, is discussed. The Supreme Court of Canada has dealt with several cases recently where it has expanded the concepts of honesty, and good faith, in contractual dealings.
The most recent case involved a contract with a Vancouver regional district to truck garbage to disposal sites. The contract allowed the district to select which of three sites the garbage would be trucked to and provided for different payments depending on how far the garbage was hauled.
The district decided to use a disposal site closer to Vancouver, which resulted in the garbage disposal company making less money.
Even though the contract specified a target profit for the garbage disposal company, the Supreme Court of Canada found that the concept of good faith didn’t require the district to have the garbage trucked further in order to increase the profit of the company. The court concluded that the district had made the decision to choose a closer site for legitimate reasons: to save money on hauling.
Good faith does not require a party to a contract to make decisions that are contrary to its legitimate interests.
Finally, on the show, in the context of 1716 overdose deaths in British Columbia in 2020, the province has asked the federal government to decriminalize the possession of small amounts of drugs so that a medical rather than law enforcement approach can be implemented.
The number of people who died of overdoses in British Columbia increased by 74% over 2019 and was significantly more than the number of people who died of COVID-19.
COVID-19 likely contributed to the sharply increased number of overdose deaths. People are more likely to use drugs when they become unemployed, are more likely to use drugs alone due to COVID-19, and mitigation measures such as increased unemployment benefits facilitate the purchase of drugs.
This week on Legally Speaking with Michael Mulligan:
In 1999 the Supreme Court of Canada, in a case called Gladue, set out principles to be considered when indigenous people are involved in the criminal justice system. Judges were directed to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders.
Despite the admonishments from the Supreme Court of Canada, the overrepresentation of aboriginal people in jail has continued to increase.
Aboriginal people make up slightly less than 5% of the Canadian population. In 2001, 17.59% of people in federal penitentiaries were aboriginal. By 2020, this percentage had increased to 30.04%.
A recent Ontario decision is discussed on the show. The judge in the case overturned a lower court decision to detain an aboriginal person while they awaited trial. The judge made clear that it’s a serious error of law not to consider Gladue principles at a bail hearing.
Despite being charged with several serious offences, the judge concluded that the aboriginal person should be released pending trial taking into account their background which included enduring a horrible childhood marked by physical and sexual abuse, as well as discrimination at being a two-spirited person.
The judge considered the recent opportunity the person had for housing and viewed their background in the context of trauma, and mental illness, including fetal alcohol syndrome, ADD, PTSD, anxiety, depression, and alcohol and drug addiction.
The decision is an important reminder of why it’s important to pay careful attention to the circumstances of aboriginal people involved in the justice system, at all stages of proceedings.
In order to ensure that judges are aware of Gladue considerations, it would be wise to ensure that inquiries are made at an early stage to determine if someone identifies as aboriginal.
Court files that involve an allegation of violence in an intimate relationship are indicated with a letter “K” so that consideration can be given to special factors that can arise in cases of that kind. A similar system could be adopted, perhaps by adding a letter “G” when an accused person is aboriginal.
Particularly, given the increased use of video and audio connections in response to COVID-19, making an inquiry to determine if the accused is aboriginal would be a wise practice.
Also discussed on the show is a case involving an unsuccessful claim for medical malpractice after a surgical wisdom tooth extraction resulted in permanent, debilitating, facial pain.
While the plaintiff agreed that the doctor had used reasonable care in conducting the procedure, her claim was based on the fact that the doctor had not warned her of the rare possibility of such permanent and debilitating pain.
While it was common ground that no such warning was provided, the claim was still not successful because the trial judge, and the Court of Appeal, concluded that even with such a warning the plaintiff would have proceeded with the surgery.
The legal test is whether a reasonable person would still have agreed to the medical procedure if they were advised of the risk. In this case, the plaintiff had terrible pain from her wisdom tooth, before the surgery and nothing else was able to alleviate this.
Finally, on the show, the BC Court of Appeal confirms that absent extraordinary circumstances judges cannot impose probationary conditions that banish people from a community. In the case being considered a condition that required someone to stay 100km away from a home they had broken into was reduced to 100 meters.
Follow this link for links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Google has agreed to settle a Canadian Class Action based on an alleged breach of privacy arising from the collection and transmission of Android smartphone data. The data in question consists of the identification number or code of the cell towers used to connect Android phones.
The Cell ID Data would identify the Android phone by unit serial number and could if considered alongside significant additional data obtained from other sources, assist someone in deducing the identity and location of an Android phone user. The data at issue was transmitted to Google from January through December of 2017.
Once a class action has been certified, a proposed settlement must be reviewed by a judge to determine if it is in the interest of the class members. Fees for counsel who conducted the class action much also be approved by a judge.
Here, the settlement of $1 million was approved. This amount will be distributed to class members who are identified. In addition, two representative plaintiffs, who spent time assisting with the class action, received an honorarium of $2,000 and $500 in accordance with the time and work they spent helping with the class action.
Also, on the show, the difference between murder and manslaughter is discussed in the context of a recent case from Nanaimo where a drug dealer that tormented one of his drug-addicted clients was finally beaten to death by the client.
What would otherwise be Murder can be reduced to manslaughter if the killing was the result of provocation from “a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of self-control.”
In 2015 the Zero Tolerance for Barbaric Cultural Practices Act added an additional requirement to this partial defence to murder which required the wrongful act of insult to also be a criminal offence punishable by more than five years of imprisonment. The intention of the change was to ensure murder convictions for honour killings.
In a previous British Columbia case, however, a judge concluded that the addition of the requirement that the act of insult also constitutes this kind of criminal offence could result in battered women, and others, being convicted of murder and sentenced to life in jail if they were to finally respond to some form of intolerable abuse that would not, itself, constitute a crime. As a result, in British Columbia, the requirement that the wrongful act or insult also be a crime punishable by more than five years of imprisonment was found to be unconstitutional.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
A BC Supreme Court Judge describes the BC COVID-19 public health orders as “fraught with inconsistency and ambiguity” and that it’s “not surprising that reasonable people can reasonably disagree about their interpretation and application in any given circumstance.”
This case is one of many that have arisen where separated parents disagree about the interpretation of the orders and how they should be applied in the context of children spending time at both parents’ homes.
The particular case was made more complicated because the orders seem to assume traditional family structures. In the case discussed the separated father, who had care of the two young children in question half the time, had become an adherent of polyamory. He described this as “a belief that all genders are equal and that loving, negotiated, individualized, consensual, and egalitarian relationships can include more than the Judeo-Christian ‘normality’ of a monogamous heterosexual couple.”
In accordance with this, the father’s new partner has a husband with whom she spends slightly more than half of her time. All three parties to this relationship were supportive of the arrangement.
Because of how the COVID-19 orders are drafted, the result of this scenario is that the husband’s apartment became a “vacation accommodation” for his new partner despite this being completely at odds with the ordinary meaning of this term.
Having worked through various ambiguous and difficult to interpret provisions of the orders, the judge concluded that the father’s relationship was not in breach of them, and that the mother should stop withholding access to the children.
It would seem that the government is aware that the orders in question are ambiguous as they have posted a notice on the government web site that says, “Do not look for loopholes or excuses to gather.”
The judge in the case also pointed out that the premier of BC, relying on advice from his Minister of Heath, was obliged to change his plans for Christmas Day at home with his wife, son and her daughter-in-law when it was pointed out to him that such a gathering would be in breach of the orders.
Also discussed in the episode is the case of a man who was convicted of murder in the year 2000. He has maintains his innocence and is still in jail. He blames his conviction on the ineffective assistance of two lawyers: one at his trial and the other on his appeal.
The Court of Appeal clearly had a concern with how the man’s second lawyer conducted himself as it asked the Law Society to investigate the lawyer, who was eventually required to stop practicing.
The man who was convicted was applying for permission to use records the Law Society collected in the course of investigating the lawyers in question. This application was, however, denied by a judge who needed to weigh the importance of the documents against claims of privilege by the Law Society.
The records collected by the Law Society, when investigating the lawyers, would include privileged information concerning other clients of the lawyers in question.
The man will need to advance his renewed application for leave to appeal to the Supreme Court of Canada, or to the Minister of Justice, without the benefit of the Law Society records.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
The Supreme Court of Canada has granted the Crown leave to appeal a BC Supreme Court decision that found a new law that required people accused of various sexual offences to provide advance notice of records they wish to rely on to the complaint and Crown to be unconstitutional.
The law in question was passed following the Jian Ghomeshi case where the complainant’s credibility was undermined by email messages, they had sent that contradicted their evidence at trial.
The BC Supreme Court judge that found the advance notice law to be unconstitutional said the following: “The danger that the complainant’s evidence may be tailored, consciously or unconsciously, is not illusory. This is why witnesses are almost invariably excluded from the courtroom until they have given their evidence.”
Also discussed is a BC Provincial Court decision that deals with the process and test to be applied when an accused person provides a cash deposit to be released on bail and then breaches their conditions of release.
When this occurs, the Crown can make an application for forfeiture of the money and the accused person would be given an opportunity to show cause why this should not occur. There is a presumption that when bail conditions are breached, cash bail will be forfeited upon application by the Crown.
Finally, a BC Supreme Court decision is discussed which was concerned with the requirements for radar readings to be accepted on a prosecution for speeding.
Evidence of the following is required:
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That the particular equipment used was properly operated by a qualified person;
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That the equipment function and accuracy were tested with whatever tests were required or suggested for it;
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That the tests or procedures indicated the equipment was operating properly; and
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That those tests indicated that the equipment was capable of accurately registering the speed of an alleged offending vehicle.
In the particular case being considered the evidence on these points was very brief and general, however, it was not challenged at trial in any way and, as a result, was found to be sufficient to permit consideration of the radar speeding reading.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Provisions of the British Columbia Public Health Act allow for the enforcement of public health orders by means other than the imposition of fines.
If someone is refusing to comply with an order to remain in quarantine or isolation, a judge can issue a warrant for their arrest and to require that they remain detained in a location and on conditions determined by the judge. When someone is arrested pursuant to such an order there is provision for the detention to be reviewed by a judge as soon as reasonably possible, but no later than 7 days from the start of the detention.
Section 114 of the Public Health Act also allows for the provincial government to make regulations that would require people to participate in preventive measures, such as receiving a vaccine or to prohibit people who have not taken a preventive measure from entering a place, working with a class of people, or in a class of occupations.
While the provincial government has indicated that it does not plan to require vaccinations, it would not be surprising if people who chose not to be vaccinated would not be permitted to work at or attend, places where people at high risk from COVID-19 are such as hospitals or long-term care homes.
Also on the show: a recent case from the Supreme Court of Canada has expanded the concept of the “duty of honest performance” with respect to contracts.
The case involved a small property maintenance company in Ontario that had a contract to perform winter maintenance for a condominium complex. The contract said that it could be cancelled with 10-days of notice. Despite this, members of the condominium complex knowing mislead the owner of the maintenance company suggesting that the contract would be continued.
The Supreme Court of Canada concluded that, while there was no obligation to give more than 10-days of notice, intentionally misleading a party to the contract was not permitted by the duty of honest performance. In reaching this conclusion the majority of the Supreme Court of Canada considered the civil law abuse of rights framework and used this to inform their analysis of the common law duty of honest performance.
Finally, on the show, a class action was certified against the Province of British Columbia for harm caused by keeping inmates in solitary confinement.
Two groups of imamates were included: those who were kept in solitary confinement for at least fifteen consecutive days, and those who suffered from mental illness and were placed in solitary confinement.
An argument by the Province of British Columbia that provincial jails don’t have “solitary confinement”, but rather “separate confinement” or “segregation” was not accepted by the court.
Follow this link for a transcript of the show and links to the cases discussed.
Rather than using collection agencies to collect COVID-19 related fines, the province of BC shouldn’t be sending $1,000 COVID-19 benefits to people who have outstanding fines for breaching orders of the Provincial Health Officer.
As the payment are gratuitous, they could simply be withheld to pay outstanding fines for breaching orders made pursuant to the Public Health Act.
The idea that someone who has received a fine for having a house party during the COVID-19 pandemic would receive a $1,000 payment from the government which would then need to be recovered by a collection agency, doesn’t make a lot of sense.
Also discussed on the show is a judicial recount from the West Vancouver-Sea to Sky Electoral District. The initial count resulted in a 41-vote difference between the Liberal, and the Green Party candidate.
Ambiguous ballots included someone who only wrote: “Donald Trump” next to a candidate’s name and someone else who drew a swastika next to a candidate’s name. The “Donald Trump” didn’t count, but the swastika did. The swastika was “close to the line” according to the judge but he concluded it conformed in shape with a cross and indicated an intention.
Ultimately, the recount didn’t change the outcome with the Liberal candidate ending up with a 60-vote lead.
The judge contrasted how carefully the recount was conducted, with all involved being gracious including the unsuccessful candidate, with Donald Trump’s “all-capitals tweets rather than evidence.”
Another case, from the Court of Appeal, dealing with the payment of real estate commissions, where a home sale doesn’t complete is discussed. The “standard form” listing agreement used by real estate agents makes commissions payable upon a sale contract being entered into, even if the sale doesn’t complete.
Prospective sellers, and purchasers, should be aware of this. A seller may be required to pay two commissions to sell a property if the first sale doesn’t complete. A buyer, who doesn’t complete, could end up being ordered to pay for the extra commission. Sellers may wish to modify the “standard form” agreement to avoid this so as to make a commission payable only upon completion of a sale.
Finally, the BC Provincial Court, and the BC Supreme Court, have issued practice directions requiring parties to indicate what pronoun they prefer: eg. Mr. / Ms. / Mx. or Counsel.
Despite this, and unlike the BC Provincial Court, where judges are addressed as “Your Honour”, in the BC Supreme Court, and in the BC Court of Appeal, “My Lady” and “My Lord” is still used.
Judges in the BC Supreme Court, and the BC Court of Appeal, should either adopt a practice of advising whether they prefer “My Lady” or “My Lord” or, in the alternative, “Your Honour” should be adopted in all of these courts, for all judges.
Follow this link for a transcript of the episode and links to the cases discussed.
Renowned constitutional lawyer Joe Arvay passed away unexpectedly at the age of 71. Over the course of a remarkable career focused on public interest constitutional litigation he had a profound impact on the lives of many people.
A few of the many cases he was involved with are discussed on the show, ranging from the Little Sisters bookstore case, that dealt with freedom of expression and equality rights to one of his most recent cases involving civil forfeiture of property that might be used, in the future, for criminal activity.
R. v. Henry was a case involving a man wrongfully convicted of 10 sexual offences for which he was designated a dangerous offender and kept in jail for almost 27 years. His wrongful conviction was caused by the Crown not disclosing 30 witness statements that would have undermined already problematic identification evidence, as well as key forensic evidence. The Crown also concealed evidence of another suspect who had been arrested twice in the vicinity of the attacks.
Mr. Arvay was successful in obtaining compensation for Mr. Henry as a constructional remedy, without having to prove that the prosecutor who withheld the evidence acted with malice. Prior to this case, no compensation would have been available unless the wrongfully convicted person was able to provide the Crown was motivated by an improper purpose.
The high threshold was intended to protect prosecutorial discretion over matters such as the decision to prosecute someone or not. The Supreme Court of Canada accepted Mr. Arvay’s argument that there is no discretion concerning the obligation to provide disclosure of evidence once a prosecution is undertaken.
Another notable case discussed on the show is Canada (Attorney General) v. Bedford. In this case, the Supreme Court of Canada struck down several of the prostitution laws that existed at the time. The court accepted that the legal prohibitions made life more dangerous for sex workers by preventing them from taking steps to ensure their safety. This was found to contravene section 7 of the Charter that protects the security of the person.
Carter v. Canada (Attorney General) is also discussed on the show. In this case, the Supreme Court of Canada concluded that the assisted suicide prohibitions were unconstitutional to the extent that they prohibited physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
This case reversed an earlier Supreme Court of Canada decision and is an example of Mr. Arvay not accepting an older decision as being immutable. The Supreme Court of Canada agreed that earlier decisions could be revised in two circumstances: (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.
The final case discussed was ongoing at the time of Mr. Arvay’s death. It involved the British Columbia civil forfeiture legislation which permitted property to be taken by the government on the basis that it is likely to be used, in the future, for criminal activity.
Mr. Arvay was successful at trial in having these provisions struck down as being unconstitutional. The trial judge used an example of a person being convicted of dangerous driving, serving their sentence, purchasing a new car, and having the government take the new car on the basis that it was likely they would drive dangerously again in the future.
Follow this link for a transcript of the episode and links to the cases discussed.
Mr. Big investigations involve tricking a suspect into believing they are being recruited into a fictitious criminal organization. Often a large number of undercover RCMP officers are involved.
Typically, the undercover police officers will spend months having the suspect perform tasks for the fictitious criminal organization, paying them to do so.
Eventually, the suspect will be introduced to the fictitious boss of the fictitious criminal organization who will tell the suspect that they need to tell them about the real crime that is actually being investigated so that loose ends can be tied up or so that Mr. Big can protect the suspect.
Variations of this technique have been used hundreds of times in Canada.
Unfortunately, it can be so corrosive that multiple innocent people have confessed to committing crimes out of either fear of the fictitious criminal organization, a desire to join it and continue making money or in order to get continued attention.
As a result, the Supreme Court of Canada has made Mr. Big confessions presumptively inadmissible. To be used the Crown now needs to establish that the probative value of the confessions exceeds its prejudicial effect, and the operation didn’t constitute an abuse of process.
In the case discussed on the show, the fact that the RCMP facilitated the suspect breaching court orders he was subject to, without judicial authorization, was not found to be an abuse of process.
Also discussed is an appeal from a conviction for first-degree murder. The appeal is based on gestures alleged to have been made by one of the jurors to the family of the deceased child during the course of the trial.
A rarely used provision of the Criminal Code that permits live evidence to be heard on an appeal is being utilized so as to permit the cross-examination of various people who observed the gestures.
The section only permits witnesses who would have been compellable at the trial to testify at the appeal. Therefore, relying on a decision in a case from 1995 where a juror had an affair with a suspect in a murder trial, while the case was going on, the juror who made the gestures cannot be called as a witness.
Finally, at the Surrey courthouse, a number of sheriffs who were responsible for transporting prisoners tested positive for COVID-19. Court staff, including Crown Counsel, were notified and advised to self-isolate and get testing. No notice was, however, provided to other lawyers who had been at the courthouse at the same time out of a desire to provide privacy for the sheriffs.
This has caused a great deal of concern as the people who were not notified weren’t able to take timely steps to ensure their safety and the safety of their families.
Courthouses could adopt practices similar to restaurants and keep a record of people who attend each day, along with phone numbers or email addresses so as to facilitate rapid notifications if there is potential exposure.
Follow this link for a transcript of the episode and links to the cases discussed.
The Douglas Lake Ranch is the largest private landholding in British Columbia. It’s owned by Stan Kroenke, a US billionaire who also owns the NHL’s Colorado Avalanche and the NFL’s L.A. Rams.
The ranch has been involved in a legal dispute for years attempting to stop people from using a road the runs through the ranch, and two lakes that are surrounded by ranch property but owned by the Province of British Columbia.
In 2018 the Nicola Valley Fish and Game Club was successful in BC Supreme Court. The judge who heard the case examined historical documents, photographs, and survey and determined that the road in question was a public road and that the public was permitted to use it to access the lakes in question.
This decision and an appeal by the ranch to the BC Court of Appeal are discussed on the show.
Also discussed are two other decision by the BC Court of Appeal:
The court dismissed an appeal from a woman who was seeking permission to use reproductive material from her late husband who died suddenly. The reproductive material was preserved as a result of an urgent, after hours, court application.
In Canada, the Assisted Human Reproduction Act, from 2004, prohibits the use of such material, absent written permission from the doner. Because the husband died suddenly, there was no written permission and, as a result, the Court of Appeal concluded that the reproductive material could not be used.
Finally, the Court of Appeal allowed an appeal from a conviction for sexual assault. The appellant was a 29-year-old woman who was convicted of sexually assaulting a 13-year-old boy. Because of the age of the boy, he would have been unable to consent to the activity as a matter of law.
The woman testified at trial that the boy had sexually assaulted her and that she felt paralyzed at the time and was unable to say no or cry out for help.
The appeal was allowed on the basis that the trial judge had not properly instructed the jury on the impermissibility of applying myths or stereotypes concerning how a victim of a sexual assault would have behaved.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
In 1983 Tomas Yebes was convicted by a Vancouver jury of murdering his two adopted sons, ages 6 and 7. The conviction was upheld by the BC Court of Appeal and the Supreme Court of Canada.
Now, at the age of 77, after having spent a decade in jail, and 26 years on parole, thanks to work by the UBC Innocence Project, he has been acquitted.
The two boys died as a result of a fire in their bedroom. The original conviction was based on an incorrect expert opinion that the boys had died of an unknown cause before the fire started.
When he was sentenced, in 1983, Mr. Yebes turned to the prosecutor and said “I also realize you are doing your job, and although I know you have made a mistake, I hold no animosity. To my friends, they believe me. I beg them not to lose their faith because the truth will come out. I am innocent.”
Section 696.1 of the Criminal Code permits the Minister of Justice to order a new trial for someone who has exhausted their appeals where they are “satisfied there is a reasonable basis to conclude a miscarriage of justice likely occurred.”
Based on the evidence and submission of the UBC Innocence Project the Minister of Justice agreed that this test had been met and ordered a new trial. The Provincial Crown then agreed that Mr. Yebes should be found not guilty and called no evidence at his new trial.
Also discussed on the show are changes to the Provincial Court Family Rules in Victoria and Surrey, which will require parenting education, mediation, and a meeting with a family justice counsellor before many family law cases go to court.
The hope is that more disputes can be resolved on a consensual basis, with the assistance of mediation and other services, rather than needing to proceed to court.
Finally, a Court of Appeal case involving the Delta Hospice Society is discussed.
The board of directors of the Delta Hospice Society is opposed to medical assistance in dying and was attempting to amend the constitution of the society to turn it into a “Christian community that furthers biblical principles,” including the sanctity of life.
To accomplish this, the board of directors was denying memberships in the society to people that didn’t agree with their proposal in order to prevent them from voting.
The Court of Appeal upheld a decision by a Chambers Judge that the board of directors didn’t have the authority to deny memberships in the society for this reason.
Because virtually all of the funding for the Delta Hospice Society is provided by the province of British Columbia, and because medically assisted dying was legalized in 2016, it could lose its funding unless these services are made available on-site.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
The Municipality of North Cowichan’s decision to refuse approval for the expansion of the Vancouver Island Motorsport Circuit is found to be unreasonable following a judicial review.
At issue was whether a racetrack is a permitted use pursuant to the zoning that is in place.
The proposed expansion of the facility was to be on land zoned in the same way as the land used for the initial track.
The municipality approved the first track but then refused permission for the expansion with no meaningful explanation for the inconsistent decision. The judge found the inconsistent decision, without explanation, to be unreasonable.
It’s important that there be predictability in administrative decisions so that people can plan their affairs.
The next case discussed involved sentencing following a guilty plea to impaired and dangerous driving causing bodily harm.
The man who pleads guilty was sentenced to two and a half years in jail, pursuant to a joint submission.
A joint submission is a sentencing submission agreed to by both the Crown and Defence lawyers. It would take into account factors, including the strength of the Crown’s case and the circumstances of the accused person.
The Supreme Court of Canada has directed that trial judges are required to impose the sentence agreed to by Crown and Defence unless doing so would bring the administration of justice into disrepute. This high threshold is important because if judges were routinely deviating from the terms of joint submissions, many fewer cases would resolve by way of people pleading guilty.
Finally, the Court of Appeal concludes that the designation of someone as a vexatious litigant does not apply to the commencement of criminal charges.
Someone can be designated as a vexatious litigant if they have a history of starting civil claims without merit. Such a designation requires the person to obtain prior permission from a judge before suing someone.
A designation as a vexatious litigant does not, however, stop the person from swearing private information charging someone with a criminal offence. This is because the criminal procedure that allows for this is a matter of federal jurisdiction. Provincial laws respecting the designation of someone as vexatious litigants don’t have any application.
In British Columbia, however, when someone swears a private information, Crown Counsel is required to either take over the prosecution or direct a stay of proceedings to stop the case.
The charge approval standard applied by Crown Counsel in British Columbia has two parts:
1) Is there a substantial likelihood of conviction? and
2) Is the prosecution in the public interest?
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
For some legal purposes, corporations are treated like people: they can enter into contracts, own property, engage in litigation, and be charged with committing offences.
Some constitutional protections also apply to corporations: the right to be free from “unreasonable search and seizure” and the right to a trial within a reasonable period of time for example.
Other constitutional protections don’t apply to corporations including the right to “life, liberty and security of the person” or the right not to be forced to testify that is protected by section 11 (c) of the Charter.
In a recent case from Quebec, where a small corporation was subjected to a fine of more than $30,000 for performing construction work without a licence, the Supreme Court of Canada has now decided that corporations can’t benefit from the constitutional protection against “any cruel and unusual treatment or punishment.”
You can’t be cruel to a corporation.
The next case discussed involved an application for an annulment of a marriage.
Following the marriage ceremony, the bride and groom attended a park, along with family members, for the purpose of photographs. A huge argument ensued, and the bride decided she didn’t want to be married.
Both parties applied for the annulment and pointed out that the marriage hadn’t been consummated following the marriage ceremony.
In refusing the application, the judge pointed out that not consummating a marriage is an insufficient basis for an annulment. There needs to be evidence that the parties were incapable of consummating the marriage, not simply that they had not done so.
Also discussed is an ongoing case that represents the largest loss that ICBC has ever suffered when hundreds of cars were damaged by acid that leaked onto a highway near Trail BC.
ICBC is suing everyone possible in an effort to recover the money they paid out for the damaged vehicles including the company that made the acid, the company that transported it, and the company that purchased it. Notably, ICBC is even suing the Province of British Columbia alleging the Ministry of Transportation or the Ministry of the Environment was partially to blame.
The issue that was just decided by a judge involved the ongoing storage of the vehicles involved. ICBC has already incurred $1.6 million in storage costs keeping the vehicles at a private storage facility. As they are paying $54,734 per month to continue storing the vehicles there, ICBC wanted permission to dispose of the vehicles prior to the trial.
The judge refused ICBC’s application and ordered the vehicles to be kept until March 31, 2021, so as to permit time for the defendants to inspect the vehicles.
According to the judge, ICBC decided to “write off” any vehicle found to have “any visible signs of exposure” to sulfuric acid.
The defendants are taking issue with whether all of the vehicles should have been written off on this basis.
If, as has been proposed, a no-fault car insurance system is adopted in British Columbia, ICBC would not be able to sue anyone to recover money from anyone in a case like this, even if it could show that they were careless.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Sentencing considerations for dangerous driving causing bodily harm: why do we sentence someone who drives dangerously and has an accident that causes serious bodily harm differently from someone who drives in the same way but is lucky and does not cause an accident?
The Criminal Code sets out various factors, and principles, that a judge is required to consider including denunciation, deterrence, and rehabilitation that must be balanced.
One sentencing option, called a conditional sentence, which often amounts to house arrest, would not appear to be an available sentencing option as a result of an amendment to the Criminal Code that prohibits such sentences where the theoretical maximum penalty would be 14 years, or more, in jail. Recently, however, the Ontario Court of Appeal found this restriction to be unconstitutional because it was overbroad and made it more difficult to reduce the number of aboriginal people sentenced to jail.
In Canada, aboriginal people are significantly overrepresented in jail and the Criminal Code directs judges to consider all reasonable alternatives to jail when sentencing offenders.
Also discussed is an estate litigation case which involved a separation agreement that required the deceased to maintain life insurance payable to an ex-wife until child and support payments ended. The deceased ex-husband changed the name of the beneficiary from his ex-wife, to that of his adult children from a former relationship. The separation agreement also required the ex-husband to “make Aeroplan points available” to his ex-wife for several years.
Ultimately, even though the life insurance proceeds would have exceeded the amount of spousal and child support still owing, the judge concluded that the ex-wife should have received the money because of how the separation agreement was drafted.
The ex-wife was not, however, entitled to compensation for the Aeroplan points, because there was no evidence, she asked to use them, and no evidence was presented with respect to their value. The case may stand for the proposition that, without evidence, Aeroplan points are presumptively worthless.
Finally, a Builders Lien Act case is discussed in the context of COVID-19 related Ministerial Orders that stopped the running of limitation periods. The master that decided the case concluded that, even though a second ministerial order which replaced an earlier one, excluded the Builders Lien Act from the suspension of limitation periods, the suspension that was in place pursuant to the earlier Ministerial Order was still effective to provide additional time.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on legally speaking with Michael Mulligan:
While attempting to count ballots cast for the election of a board of directors for the Shon Yee Benevolent Association things went sideways when water spilled on a table during the vote count.
Once this was cleaned up it was unclear whether a disputed ballot had been included in a count on a whiteboard, or where the ballot had been put.
Various other ballots had been marked in unusual ways, including a mixture of tick marks, crosses, and in one case the number 11.
Following a break for dinner, it was determined that the ballot box containing the disputed ballots had been unsealed by someone unknown, preventing a reliable recount.
After two years of not having a board of directors, the matter was finally resolved by the BC Supreme Court.
The series of unfortunate events that propelled the vote count into court should be a cautionary take for the counting of ballots in general elections.
Also discussed was a case involving a man who shot a police officer in the hand and arm before running away in a Skytrain station. The man was charged with various firearms offences, which were not contested. A charge of attempted murder was, however, an issue.
The essence of any charge of attempting to commit a crime is that the accused must have the intention to commit that very crime. A person may be convicted of murder who either intends to kill another person or who in the words of section 232(a)(ii) of the Criminal Code, “means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not”. But, an accused may only be convicted of attempted murder if it is proven that he intended to cause the death of the other person.
If someone points a handgun at a vital part of another person’s body and shoots the person, it may be reasonable to presume that they intended the probable consequences of their actions. This does not, however, mean that in every circumstance where one person shoots another with a firearm, the shooter is guilty of attempted murder.
On the facts of the case discussed, the judge had a doubt about whether the accused actually intended to kill the police officer. The judge took into account several pieces of evidence, including the testimony of the accused. Other factors included where the police officer was shot, and that the accused did not shoot the officer again after when running past him despite having had the opportunity to do so.
Finally, a Court of Appeal decision concerning an estate dispute is discussed. The appellant alleged the other party committed perjury but did not have evidence to support this claim. Making such a serious allegation, repeatedly, without evidence, was determined to be reprehensible conduct and the court awarded increased, or special, costs against the unsuccessful appellant.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Two fathers with children and family members that have pre-existing medical conditions were unsuccessful in an application for an interim injunction to require British Columbia schools to implement additional COVID-19 protections such as social distancing, and mandatory mask-wearing in classrooms.
The judge on the application was not prepared to rely on media reports concerning the number of exposures in schools.
In addition, the judge concluded that the fathers had failed to clearly identify the specific government decision they were seeking to have judicially reviewed.
Because the fathers both believed they were acting in the public interest by bringing the application, no cost award was made against them.
Also discussed is a British Columbia Supreme Court decision upholding a conviction for using an electronic device while driving.
The electronic device in question was an iPhone with a dead battery. The “use” was the “holding” of the device by wearing earbuds that were plugged into the dead iPhone. The judge concluded that the “holding” could include holding the earbuds in the driver’s ears.
The driver left the earbuds in his ears to drown out some of the highway noise. He was not touching the iPhone at all.
The underlying issue is that the provisions of the Motor Vehicle Act dealing with distracted driving by the use of electronic devices are so broadly drafted that they capture activity that wouldn’t actually be distracting.
How judges are to interpret provisions like this is discussed.
Ultimately, it’s a legislative responsibility to ensure that legislation isn’t overly broad.
Finally, a Court of Appeal case involving the withdrawal of a guilty plea is discussed. The unfortunate fact pattern in the case involved a senior criminal lawyer who gave bad advice to his client concerning the guilty plea, after filing to reading a relevant decision that would have impacted the case, and then sending a junior associate to deal with the matter.
The mandatory ICBC no-fault insurance system that has been proposed for British Columbia is intended to save money by no longer spending time determining who was at fault in an accident.
Someone who caused an accident would receive the same benefits as the person they crashed into.
Disputes would, however, still arise with respect to how seriously some was injured, or how much compensation they should be provided. It just wouldn’t matter if the person caused the accident or not.
Currently, if someone has a dispute with ICBC, they would be entitled to go to court to have a judge decide what they are entitled to.
The no-fault scheme would also prevent people from going to court in most circumstances, and disputes would be resolved by an entity called the Civil Resolution Tribunal.
The Civil Resolution Tribunal was established to deal with minor strata disputes and very small civil claims of less than $5,000. It operates online in a fashion similar to a PayPal or eBay dispute resolution system.
For very minor disputes, like those for which the Civil Resolution Tribunal was intended, this makes sense because deputes can be resolved quickly and inexpensively. Not every strata dispute over a BBQ on a patio needs to go to court.
The Civil Resolution Tribunal is not, however, an appropriate mechanism to resolve more serious disputes that involve the provincial government, or ICBC, which is entirely owned by the provincial government.
Unlike judges, who are appointed for life, and are independent of government, the adjudicators who work for the Civil Resolution tribunal are appointed by the government on renewable, short term, contracts of between 2 and 4 years.
Someone who is dependent on the government for continued employment should not be deciding disputes that involve the government.
If you had a dispute with your neighbour, you would not want someone employed by your neighbour to decide the issue.
As of April 1, 2019, the provincial government gave the Civil Resolution Tribunal authority to decide disputes with ICBC involving up to $50,000.
A review of Civil Resolution Tribunal decisions from July 1, 2020, until October 7, 2020, shows that of 30 disputes involving ICBC, 27 were decided in favour of ICBC, and 3 were decided against ICBC.
Whether or not ICBC no-fault insurance is a good idea, disputes with a government-owned insurance company should not be decided by people who depend on the government for continued employment.
Also discussed on the show is a decision of the British Columbia Court of Appeal overturning a first-degree murder conviction.
The conviction was based on entirely circumstantial evidence after the accused’s wife drowned in a lake.
The central issue on the appeal was the use a jury could make of statements the accused provided to the police concerning how his wife drowned.
Ordinarily, if a statement by an accused person is disbelieved, it’s no evidence of any kind. Only in limited circumstances can a disbelieved statement be treated as evidence of guilt.
Follow this link for a transcript of the show and links to the cases discussed.
Because the British Columbia provincial election was called suddenly none of the political parties have candidates nominated in all ridings. As a result of COVID-19, many people have also requested mail-in ballots.
Without candidates having been determined yet, the mail-in ballots being distributed simply have a blank space to write in the name of the candidate you wish to vote for.
When asked about the voting procedure, the premier incorrectly suggested that people could write in various things, including the name the party leader they wished to vote for. Unfortunately, unless the party leader happens to be a candidate in your riding, writing in the name of the party leader will result in a spoiled ballot.
Section 123 of the Election Act does permit, on a write-in ballot, someone to indicate either the name of the candidate or the political party, they wish to vote for. The name of the party leader is not, however, a permitted alternative.
The Election Act does expressly provides for write-in ballots to be counted even where the name of a candidate or political party is misspelled or abbreviated, as long as the intention of the voter is clear.
On regular ballots, which include the names of the candidates, a selection should be made using a cross or tick mark opposite the name of the candidate you wish to vote for.
Other marks should not be made on a ballot because, if they could reasonably be used to identify a voter, the ballot would be rejected.
Also discussed on the show are provisions of the Elections Act that regulate third-party advertising.
Limits on how much a candidate can spend would not be meaningful if other people could spend money on an election without limit.
Unfortunately, the rules respecting third-party advertising are so restrictive as to have forced a pub owner from Kelowna to register so as to avoid fines for having a message printed at the bottom of receipts. The message reads “Oct. 24 vote that f*cker out!”
While the message wouldn’t cost the pub owner anything to print, the Election Act would require a fair market value to be assigned and would then result in a fine of twice this amount should the pub owner not register and comply with a host of regulator requirements.
For a transcript of the show, and links to the legislation discussed, follow this link.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
The premier of a province doesn’t actually have the authority to call an election. Authority to dissolve the legislature and call an election resides with the Lieutenant Governor.
Ordinarily, the Lieutenant Governor would call an election at the request of the premier. In unusual circumstances, such as those that currently exist in British Columbia, she will have a choice to make.
The circumstances where a request for an election could be refused by the Lieutenant Governor were described by Sir Alan Frederick Lascelles, a private secretary to King George VI. They are referred to as the Lascelles Principles:
1) The existing Parliament was still vital, viable, and capable of doing its job;
2) A General Election would be detrimental to the national economy;
3) He could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons.
These principles were articulated in relation to the British Parliament but would be applicable to Canadian legislatures. The second principle has been restated as detrimental to the public interest, rather than just economic interest.
There are two historic examples of a request for an election being refused by a Governor-General.
In 1926, Canadian Prime Minister King asked then Governor-General Byng to dissolve parliament and call an election. The Governor-General refused and, instead, permitted the leader of the Conservative Party to form a government.
In 1939, the Prime Minister of South Africa lost a vote to keep South Africa neutral in World War II. He asked the South African Governor-General to call an election. The Governor-General refused, the Prime Minister resigned, and the former minister of justice formed a government. South Africa joined the war against Germany.
Currently, in British Columbia, the BC NDP and BC Liberal Party each have 41 seats. The Green Party has 2, there are 2 independents, and one former BC Liberal seat is now vacant.
Because an election in the middle of the COVID-19 pandemic might be viewed as being contrary to the public interest, if there was an alternative coalition presented to the Lieutenant Governor, she would need to choose between this, and calling an election, should there be a request for an election by the current premier.
Also discussed on the show is a case of a marriage annulment being granted on the basis that the husband was impotent and unable to consummate the marriage, despite numerous attempts. The husband unsuccessfully opposed the annulment and was also required to pay his former wife costs for the court case.
Finally, on the show, the case of a woman who falsely claimed to have been residing with a man for more than two years in order to qualify as his common-law spouse for the purpose of inheriting his home is discussed. The deceased man’s only son, who was abandoned as a child, successfully demonstrated that the woman hadn’t been residing with his estranged father for two years and, in so doing, inherited the house.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
As schools attempt to reopen for in-person instruction, amidst increasing COVID-19 infection rates, disputes between separated parents over sending children back to school have started showing up in court.
Disputes of this kind are analyzed based on the best interest of the child.
In a recent case of this kind, despite the increased risk to a grandparent, and mother of the father’s new domestic partner, a court-ordered that the child return for in-person instruction.
The court noted that both parents were first responders: a nurse and a police officer. This work already resulted in an increased risk of COVID-19 infection for the potentially impacted family members.
The child also had some special needs and the court found he could benefit from the social interaction made possible by returning to in-person school.
Also discussed is the use of parenting coordinators to resolve minor parenting disputes that otherwise end up in court where there is high conflict family litigation.
Parenting coordinators can be appointed by a court to settle minor parenting disputes and to serve as an intermediary for communications between separated parents and, if necessary, correct them for tone and contents.
Also discussed are the concepts of pre and post-judgment interest as well as the addition of management fees for lump sum awards.
Management fees are intended to pay for the professional financial management of lump-sum awards. There can be a spectrum of such assistance, which can be necessitated in circumstances such as where a plaintiff suffered a head injury and would, as a result, be incapable of managing an award to pay for their future needs.
Follow this link for a transcript of the episode and links to the cases discussed.
Legally Speaking with Michael Mulligan is live on CFAX-1070 every Thursday at 10:30 am.
This week on Legally Speaking with Michael Mulligan:
A claim for an alleged breach of contract to rent a property so as to permit it to be used as an Airbnb is denied on the basis that the short-term rentals are not lawfully permitted.
Contracts involving illegal activity are not enforceable in court. You can't sue if someone breaches an agreement to pay for illegal drugs, for example.
This same issue can arise where there are contracts intended to evade taxation by paying cash.
Also discussed in the case is the concept of duress.
In order to constitute a defence to the enforceability of a contract, duress requires more than one party taking advantage of a superior bargaining position. For duress to be established there must be coercion of the will of the contracting party and the pressure must be exercised in an unfair, excessive or coercive manner.
Next on the show, a British Columbia Court of Appeal decision dealing with the certification of a class action against the Peoples Trust Company is discussed.
The class action arose as a result of the company maintaining an unencrypted copy of a database on its webserver. The database contained customer information including names, addresses, email addresses, telephone numbers, dates of birth, social insurance numbers, occupations, and more. Patches were not installed to update the software on the server, leaving it vulnerable to known exploits, which were taken advantage of in a cyber-attack that originated in the People’s Republic of China.
As with many class actions, defendants often spend a great deal of legal effort resisting the certification of a claim, during which a judge would determine is a case should proceed as a class action.
One of the helpful changes that have been made to the law concerning class actions that are commenced in British Columbia is that judges can now certify a class action on an “opt-out” basis for people who do not live in British Columbia. Prior to this change, people outside the province would need to actively “opt-in” if they wished to participate.
Finally, a case concerning pay for judges should be determined is discussed.
Because judges are often called upon resolve disputes that involve the government, it would not be appropriate to have judges negotiating with the government over their pay.
In order to avoid this, there is an independent commission that periodically recommends changes to judges’ salaries and working conditions.
Unfortunately, in British Columbia, there is a long history of the government overruling decisions of the independent commission. This has resulted in litigation before Supreme Court Judges who are not impacted by the decisions.
In order to reject a decision of the independent commission, there needs to be a rational reason for doing so. This was found to be lacking when the Legislative Assembly rejected the 2016 recommendations by the Judicial Compensation Commission.
Given this long and unsatisfactory way in which this issue has been dealt with, it would be better if the independent commission was free to set judge’s salaries without affording a mechanism for the government to interfere with the outcome of this process, short of amending the legislative scheme.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
Two fathers have filed a petition in the British Columbia Supreme Court to prevent schools from reopening without adequate COVID-19 safety protocols.
In order to permit schools to reopen, the latest provincial Public Health Act order that sets out safety requirements for virtually any public gathering simply exempts schools.
The protocols that schools are excluded from include measures such as wearing masks, allowing sufficient space for social distancing, and not having gatherings of more than 50 people.
Having been exempted from the Public Health Act order, schools have “guidance” from the British Columbia Centre for Disease Control which states “There is limited evidence of confirmed transmission within school settings.”
This is despite the reported COVID-19 outbreaks in schools, shortly after reopening, in Germany, Israel, the United Kingdom, and the United States.
The children of both fathers, as well as their families, have pre-existing conditions. They point out that children, including theirs, have siblings so that school cohorts can be multiples of what’s intended because of contact at home.
The application for an injunction is scheduled to be heard the week of September 14th.
Also discussed is the COVID-19 Related Measures Act.
This act included provisions that prohibit civil claims arising from COVID-19 infection.
The regulations passed pursuant to the act prohibit any claims for damages that result from COVID-19 infections resulting from, amongst other things, educational endeavours.
As a result, if a student, or family member, is infected or dies no compensation would be available.
Finally, a wrongful dismissal claim is discussed.
A long-term employee of a manufacturing company refused to wear a safety hat on the basis that she claimed it caused headaches. Despite repeated requests, the employee did not provide medical information to substantiate this claim and she was eventually fired.
The judge concluded that failing to wear protective equipment provided cause to dismiss the employee.
This result is important in the context of employers requiring employees to wear masks.
Follow this link for links to the cases and pleadings discussed as well as a transcript of the episode.
This week on Legally Speaking with Michael Mulligan:
In 2018 a BC man made an agreement to sell 50 bitcoins for $10,700 each for a total of $535,000. The purchaser didn’t complete the purchase of the bitcoin, so the prospective seller sued.
The person who was sued claimed that he didn’t enter into the contract personally, but did so on behalf of a company, Einstein Exchange Inc. that went bankrupt and ceased operations in October of 2019.
When someone enters into a contract on behalf of a corporation, they are not personally responsible for it. You can’t successfully sue Tim Cook if your Apple computer stops working.
While it may be more difficult to determine on what basis someone is contracting with a very small business, the case discussed involves one of the basic principles of civil litigation: when you sue or sue someone, there is an obligation to list and exchange all relevant documents.
Unlike in a criminal case, where the accused person has a right to remain silent, in a civil case the parties are required to list and provide all relevant documents with each other. This disclosure requirement is intended to promote the resolution of disputes over money.
In the case discussed on the show, the defendant was ordered to provide a complete list of relevant documents and to confirm it was complete by swearing an affidavit.
Since this dispute began, the price of bitcoin has gone up and down but is now more than $15,000. Had the plaintiff just kept his 50 bitcoin they would have been worth more than $770,000.
Also discussed is a criminal case involving guns and ammunition located in a car stopped by the police.
Police officers are permitted to stop a vehicle at any time to ensure compliance with the Motor Vehicle Act including that the driver is licensed, has insurance, and is sober.
Police officers are not, however, permitted to arbitrarily stop vehicles to investigate a suspicion of criminal conduct.
In the case discussed, the judge concluded that the police officer who stopped the car lied about his reason for doing so. A second police officer that attended and testified provided markedly different evidence about what occurred.
The judge concluded that the vehicle was not stopped to ensure compliance with the Motor Vehicle Act. As a result of this conclusion, and because the officer involved was untruthful about what occurred, the evidence that was located was excluded from consideration in the trial and the passenger in the car was acquitted.
Finally, a family law case concerning an application for spousal support and the division of property following a ten-year relationship where the couple spent seven years sailing around the world.
In order to start a family court case in British Columbia, there must be a substantial connection to the province. A judge would also need to conclude that British Columbia is the most convenient jurisdiction for the case to proceed.
In the case discussed, even though the claimant was living in Portugal, and the respondent was living on the sailboat, at the time the action was commenced, because a substantial part of the respondent’s property was in British Columbia, the case was allowed to proceed.
Follow this link for a transcript of the show and links to the cases discussed.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
This week on Legally Speaking with Michael Mulligan:
A long-running neighbour dispute over garbage, grass clippings, dog feces, a dead snake on a trampoline, and a retaining wall consumes 13 days of court time and results in a $16,000 award.
One of the feuding neighbours spray painted and then jackhammered a concrete retaining wall that protruded a few inches onto his property.
Absent a danger to life, or some other emergency, the law doesn’t permit a property owner to engage in a self-help remedy such as destroying property that crosses onto their lot.
In this case, the property owner that destroyed the wall was ordered to pay $16,000 in damages.
Rather than destroying the retaining wall, an application could have been brought in Supreme Court to modify the property line and provide compensation.
Also discussed is a case that considers the difference between Dangerous Offender and Long-Term Offender designations.
If someone is determined to be a Dangerous Offender, they can be sentenced to an indefinite period of incarceration.
In contrast, if there is a reasonable possibility of eventual control of risk in the community, someone can be designated as a Long-Term Offender and would be sentenced to a definite period of incarceration, to be followed by up to 10 years of supervision.
The large majority of Dangerous Offender designations are as a result of convictions for sexual offences where the offender “has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.”
The final case discussed on the show involved the successful appeal of an order that a lawyer pay costs for an unsuccessful application in a high conflict estate case.
The dispute had gone on so long, the lawyer's client had also passed away.
While there is authority to require a lawyer to pay costs this requires a finding of “reprehensible” conduct that amounts to a “serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on [their] part, that is deliberate”.
Follow this link for links to the cases discussed and a transcript of the episode.
In 2011 a black, 22-year-old, UBC student went to the upper deck of a SkyTrain station to meet a friend. As he was not planning to ride the SkyTrain, he did not purchase a ticket, despite being in a “fare paid” zone. When he received a message from his friend, advising of a change of plans, he started to walk down the stairs at the SkyTrain station.
Two transit police officers approached the student, and after a five-minute discussion, wrongly concluded he had provided a false name. They told him that he was under arrest and grabbed his wrists. One of the officers attempted to scoop the student’s legs out from under him.
The student began to run away and, at that point, one of the officers tackled and punched him. One officer then drew his baton and struck the student ten times in the head, neck, and back causing a six-inch laceration to the back of his head and lacerations to his hands, arms and back.
The officers falsely claimed that the student was drunk in public and had assaulted them.
One of the officers eventually plead guilty to a criminal charge of assault causing bodily harm.
Following a convoluted and delayed disciplinary process, precipitated by an overly complicated Police Act disciplinary process, the Police Complaints Commissioner ordered a public hearing.
The police officer who had been convicted of assault causing bodily harm successfully challenged the order for a public hearing on the basis that it would be an abuse of process and unreasonable.
The Court of Appeal has now allowed an appeal by the Police Complaints Commissioner to permit the public hearing to proceed, despite the complex and delayed process, because of the significant public interest in having the complaint addressed in full, in a public hearing.
Also, on the show, a Supreme Court of Canada case concerning judicial salaries, and cabinet confidentiality is discussed.
Judges are supposed to be independent of the government. This is important because they frequently decide cases where the government is a party to the dispute. In order to maintain independence from the government, it would be inappropriate for judges to be negotiating with the government over their salary.
You wouldn’t want a judge to be deciding a case concerning the government to be in the middle of salary negotiation with the government.
To avoid this problem, there are independent commissions in each province that recommend changes to Provincial Court Judges’ salaries. In British Columbia, however, there is a long and unfortunate history of the government refusing to implement the recommendations of the independent commission. This has produced much litigation, before different judges, who are federally appointed.
One of these disputes, concerning access to cabinet documents related to the salary dispute, was recently decided by the Supreme Court of Canada.
Finally, on the show, an unsuccessful appeal by the University of British Columbia over a $1.15 million fine pursuant to the Fisheries Act is discussed. The university was convicted after a contractor working for the university allowed some ammonia in the cooling system at the UBC ice rink to escape and get into a storm drain, that got into a ditch, which got into a creek, that fish “frequent”.
Follow this link for a transcript of the show and links to the cases discussed.
Legally Speaking with Michael Mulligan is live on CFAX 1070 eery Thursday at 10:30 am.
As a result of the City of Victoria deciding not to enforce a bylaw that prohibits camping in Beacon Hill Park, 78 structures have been erected in the park.
Following weeks of complaints from nearby residents, and other people wishing to use the park, the City of Victoria obtained an interim injunction requiring people living in the park to remove the structures form portions of the park that are environmentally sensitive, or of cultural significance.
The Friends of Beacon Hill Park Society is not satisfied with the interim injunction and wish to have all of the structures that have been erected by people camping in the park removed.
The City of Victoria only owns Beacon Hill Park pursuant to the terms of a trust. The 1882 trust requires the park "to be maintained and preserved...for the use, recreation and enjoyment of the public."
On the show, an 1884 court decision by Chief Justice Begbie, is discussed. At that time the City of Victoria had permitted an agricultural pavilion to be constructed in the park. This was found to be contrary to the terms of the trust and had to be removed.
In 1998, another court decision held that the City of Victoria could not allow a music festival to be held in the park as it would have involved an area of the park being fenced off and tickets being sold for entry. This was also found to be contrary to the terms of the trust as it would exclude people without tickets from using and enjoying the fenced-off section of the park.
The Friends of Beacon Hill Park Society intends to argue that permitting people to erect semi-permanent structures in the park is also contrary to the terms of the trust.
When someone holds property pursuant to a trust, they can only use the property in accordance with the terms of the trust. It is not theirs to do with as they wish.
While there are usually time limits on how long the terms of a trust can restrict the way property can be used, as a result of the rule against perpetuities, these time limits do not apply to dispositions of property made by the provincial government. Because Beacon Hill Park was given to the City of Victoria by the provincial government, there is no time limit on how long the trust conditions apply for.
Also discussed is a class action against ICBC as a result of an employee of ICBC selling personal information to drug dealers.
The ICBC employee was selling address, and other personal information, associated with the licence plates of vehicles parked at the Justice Institute in New Westminster. The drug dealers concluded that people parked there were likely police officers.
The drug dealers were using the address information to vandalize, start fires, and shoot at the homes of the people identified by the ICBC employee.
Despite admitting what the employee was doing, ICBC has been attempting to stop the class action in various ways, with a host of legal arguments.
Most recently, ICBC attempted to third party the drug deals. Because ICBC did so out of time, and without obtaining permission from the court, this tactic was not permitted.
The various ways ICBC has attempted to avoid legal responsibility for the conduct of its employee is cause for concern in the context of current plans to establish a monopoly no-fault insurance system which would allow ICBC to decide how claims would be handled without any meaningful oversight by the courts.
Follow this link for a transcript of the show, and links to the cases discussed.
Jury trials have proven to be the most challenging parts of the justice system in the age of COVID-19.
The Court of Appeal has been conducting appeals using Zoom. The Provincial Court has been conducting sentencing and judicial interim release hearings by telephone conference. Both the Provincial Court, and the Supreme Court, have been utilizing video connections for witnesses, and relatively simple modifications to courtrooms have permitted safe in-person trials to resume.
The challenge for jury trials starts with the process of selecting juries.
Prior to COVID-19, hundreds of potential jurors would attend the courthouse and several juries would be selected from this jury pool. Such a process would no longer be safe.
The process contemplated by a recent practice directive will divide the jury selection process into two parts. On one day the names of potential jurors will be drawn at random. On a second day, contemplated to be a Saturday so as to minimize the number of people at the courthouse, the potential juror whose names were drawn will be required to attend in small groups, at staggered times.
Juries will be selected from the smaller groups and once all of the jury spots have been filled, prospective jurors in later groups will be advised they do not need to attend the courthouse.
The next issue to be solved is safety during the course of a trial. This will involve modification to courtrooms, by way of physical separation or plexiglass barriers. Where this cannot be achieved, given the physical limitations of courtrooms, other facilities such as theatres, hotel meeting rooms, or university lecture facilities will be utilized. Many of these facilities are not otherwise in use due to COVID-19 restrictions.
The final physical requirement for the resumption of jury trials is the need for a sufficiently large room for jury deliberations. Ideally, this would include private bathroom facilities. Juries need to be able to deliberate privately while ensuring sufficient separation for all of the members of the jury.
The direction from the British Columbia Supreme Court is that jury trials will recommence on September 8th. This mandate is requiring an assessment of what physical modifications will be possible in existing courtrooms so as to determine whether jury trials will need to move into alternative venues.
Also discussed on the show is a recent case dealing with the time period police are permitted to keep evidence, without a charge be approved.
Finally, a court case involving an application for a cannabis sales licence is discussed. While the licence needs to be issued by a provincial government agency, that process cannot proceed unless the municipality in which the store would be located submits a report. In the case of an application for a licence in Sidney, the municipality did not file the required report at all. The lack of a report from the municipality stopped the licence application altogether. On a review in court, Sidney was ordered to submit the required report, so that the licence application could proceed.
Follow this link for a transcript of the episode and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
When are the police permitted to arrest or detain someone?
In the context of discussions concerning unbiased policing and identification checks, various common circumstances that do permit a police officer to arrest or detain someone are discussed:
1) If they have reasonable grounds to believe they have committed a criminal offence.
2) If they have reasonable grounds to believe someone is about to commit an offence.
3) For “investigative detention”, short of an arrest, where a police officer has reasonable grounds to suspect an individual is connected with a particular crime.
4) If there is an outstanding warrant.
5) In order to issue a ticket: the leading case on this is from Victoria. It involved a man who rode his bike through a red light and then refused to identify himself so as to permit a police officer to write him a ticket. The case went all the way to the Supreme Court of Canada. The man rode his bike from Victoria to Ottawa for the hearing but was unsuccessful.
6) Pursuant to provincial mental health legislation, when someone is believed to be a danger to themselves or others.
7) Where someone is in a “state of intoxication” in a public place, pursuant to provincial liquor legislation.
8) At any time someone is driving a vehicle, in order to ensure sobriety, licence, insurance coverage, or any other requirement of the Motor Vehicle Act.
Where someone is not driving a vehicle, or subject to a lawful arrest or detention, there is no general obligation to talk to the police or provide identification.
Police officers are, however, permitted to talk to anyone they wish. They may also ask questions or request identification. There is not a corresponding obligation to answer questions or produce the requested identification, absent circumstances such as those discussed.
The challenge for someone who is approached by a police officer and asked for identification is that it can be difficult to know if the police officer has the legal authority to arrest or detain them. Some people may also feel intimated or obliged to comply with a request for identification.
On January 15, 2020, pursuant to the Police Act, the Province of British Columbia issued a Provincial Policing Standard that set out criteria for police identification checks to ensure that they are conducted in an unbiased way, and not based on personal characteristics.
The unfortunate reality in British Columbia, and elsewhere, is that there is a correlation between ethnicity and the probability of being asked for identification by the police.
It is also true that someone who is impoverished, homeless, or addicted to drugs or alcohol, is much more likely to come to the attention of the police and be subject to a request for identification.
There is an overrepresentation of minority groups, including aboriginal people, who are experiencing homelessness, poverty, and drug or alcohol addiction. This makes the interpretation of statistics concerning the ethnicity of people asked for ID by the police difficult to interpret.
Follow this link for a transcript fo the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
The British Columbia Court of Appeal finds that the Director of Child, Family and Community Services acted unreasonably, and without authority, in telling a single father that children under 10 years of age could not ride the public bus without supervision.
The children that were riding the public bus together, to get to school, were 10, 9, 8 and 7 years old.
The father had spent two years teaching his children how to use the public bus and provided them with a cell phone, with a tracking feature so that he could monitor their location.
The father was required to sign an agreement not to permit any child under the age of 10 to be unsupervised at any time, including on the bus, and implied that the children could be apprehended if he did not comply.
The father was able to raise money with a go fund me page to help pay for the court challenge that eventually reached the Court of Appeal.
The Director of Child, Family, and Community Services argued in court that the agreement the father was required to sign was just a suggestion. The Court of Appeal judges disagreed and pointed out that while lawyers were making this argument in court, social workers employed by the Director continued to treat the agreement as an order.
Also discussed is another British Columbia Court of Appeal decision dismissing a sentence appeal by an aboriginal man who was sentenced to 12 months in jail for growing marijuana and possessing marijuana for the purpose of trafficking.
This sentence was upheld despite the fact that marijuana is now being sold in government-run stores that have been deemed an essential service in the context of the COVID-19 pandemic.
In 1999 the Supreme Court of Canada’s decision in R. v. Gladue dealt with the massive overrepresentation of aboriginal people in Canadian jails.
Since 1999, however, the percentage of aboriginal people in jail has increased significantly.
Aboriginal people make up approximately 5% of the Canadian population but now account for more than 30% of the federal prison population. This is an increase of 5% from four years ago.
The disproportionate percentage of aboriginal people in jail is even starker for women: 42% of women in federal prisons are aboriginal.
Finally, the BC Attorney General is running into opposition from the Trial Lawyers Association over suggestions including the suspension of civil jury trials, or binding arbitration, to clear a backlog of ICBC cases caused by COVID-19 disruptions to courts.
The Trial Lawyers Association has asked the Attorney General to abandon his unpopular plan for mandatory ICBC no-fault insurance if he wishes assistance with the backlog.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
The Supreme Court of Canada has declared an arbitration clause, used by Uber, to be unconscionable, and therefore invalid.
The clause, included in a 14-page agreement that prospective Uber drivers were required to click “I accept” on, twice, purported to require any disputes with Uber to be dealt with by arbitration, in the Netherlands, rather than going to court.
While not specified in the 14-page agreement, it turned out that in order to start the arbitration process, there was a $14,500 USD fee. A driver making a claim would also need to travel to the Netherlands.
If it had been found to be enforceable, the other effect of the arbitration clause would have been to prevent the case from being certified as a class action. Every claim would have to proceed separately and would be subject to the $14,500 fee.
As a result of the Supreme Court of Canada decision, the case, which involves a dispute as to whether Uber drivers are employees or independent contractors, can proceed.
Also discussed is a class action case from British Columbia involving a claim that a group of companies that transport vehicles on ships conspired to fix higher prices for this service. The alleged impact was to raise the price of cars sold in British Columbia.
The British Columbia Court of Appeal held that two of the companies involved could still be sued, even though they didn’t deliver cars to British Columbia. The companies didn’t deny that they were involved in a price-fixing conspiracy. The British Columbia Court of Appeal held that the two companies could still be liable on the basis that their participation in the price-fixing conspiracy artificially raised the price charged by other companies that did deliver cars to British Columbia.
Finally, a case involving a principal, and several companies associated with Bear Mountain development is discussed. The case involved the taxation of a law firm’s account. A taxation, in this context, is supposed to be an expeditious way to determine if a lawyer’s bill is correct and reasonable.
Unfortunately, the former clients made no effort to narrow the focus of the review and demanded a full refund of all fees paid for a complex case that went on for an extended period of time. This resulted in a protracted, 11-day hearing and, ultimately, an award of costs against the client in the amount of $36,465.
Costs, in the civil litigation context, are intended to encourage parties to make reasonable concessions, narrow issues, and resolve disputes. Unfortunately, they don’t always have the desired effect.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan:
From March to May 2020, the number of people who have died as a result of drug overdoses in British Columbia has been more than double the number of people who have died from COVID-19: 401 vs 164.
January COVID-19 deaths: 0 Overdose deaths: 77
February COVID-19 deaths: 0 Overdose deaths: 76
March COVID-19 deaths: 24 Overdose deaths: 113
April COVID-19 deaths: 87 Overdose deaths: 118
May COVID-19 deaths: 53 Overdose deaths: 170
Some of the efforts to assist with COVID-19, such as providing $2,000 / month payments to people who are out of work may have increased the number of drug overdose deaths. As of May 2020, the number of overdose deaths has more than doubled from the number seen in January or February, before the Canadian Emergency Response Benefit became available.
Provincial Health Officer Dr. Bonnie Henry has released a report entitled Stopping The Harm – Decriminalization of people who use drugs in BC. The report proposes that drug addiction be dealt with as a medical, rather than criminal law issue.
Also discussed on the show are three pieces of provincial legislation that were recently introduced.
Bill 22 would permit people under the age of 19, who are determined to have engaged in “severe problematic substance use” to be involuntarily detained by chemical, electronic, mechanical, or other means for the purpose of “stabilization”. For this to be effective, in any long-term way, it’s necessary to have immediately available drug treatment space available. This requires more than legislation: it requires funding.
Bill 21 would permit electronic wills, that can be witnessed remotely. This will be a longer-term solution than Ministerial Order M161, which has temporarily permitted wills to be witnessed remotely, in the context of COVID-19. Without measures like these, people in long term care homes, and others who are in isolation, would be unable to create a will.
Bill 11 is much more problematic. This is the legislation that would implement mandatory no-fault ICBC car insurance. The premise of the legislation is a prohibition on being able to sue someone who injures you in a car accident. Instead, you would be required to accept compensation from ICBC, which is referred to as “the corporation” in the legislation. The compensation from ICBC will the same regardless of who caused the accident.
Follow this link for a transcript of the show and links to the material discussed.
This week on Legally Speaking with Michael Mulligan:
In a recent decision the Supreme Court of Canada has affirmed that when someone is arrested and charged with an offence, the presumption is that they should be released without the imposition of any conditions.
Any conditions of release that are imposed must be clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention.
In British Columbia, courts have been using a 24-page “pick list” of bail conditions, and accused people were routinely being released with numerous conditions selected from it. As a result, a large number of people end up being charged with breaching bail conditions.
The Supreme Court of Canada made clear that the setting of bail is to be an individualized process and there is no place for standard, routine, or boilerplate conditions.
The Supreme Court of Canada further concluded that for someone to be convicted of breaching a condition of release, the Crown is required to prove that the person intended to breach their bail conditions or were reckless about it. This is a change from how British Columbia courts had been dealing with breach of bail charges.
The case the Supreme Court of Canada was dealing with involved a man from Courtenay who was convicted for failing to come to the door when the police rang his doorbell to confirm his compliance with a curfew condition. The man was home but did not hear the doorbell in his bedroom.
Also discussed on the show is a case involving social host liability arising from a tragic car accident on Salt Spring Island following a teenage house party.
While people hosting private parties for adults are not, generally, responsible for car accidents their guests have, there can be a liability for commercial establishments serving liquor, or where there is a duty of care arising from a failure to adequately supervise children.
The case involved parents who permitted a house party that involved teenagers drinking alcohol and smoking marijuana. The parents concluded that because this activity would go on regardless, it would be better to permit and supervise it.
The parents took steps including collecting car keys from people who drove to the party and driving several teenagers home at the end of the night.
Unfortunately, two teenagers who attended the party walked away and took a car parked at a neighbour’s house that had keys left in it. There was a car accident and the driver died. The 17-year-old passenger, who suffered life-altering injuries, sued the parents.
The judge in the case concluded that the parents were not responsible for the accident on the basis that they had taken reasonable steps in the circumstances, including the age of the children.
Follow this link for a transcript of the show and links to the cases discussed.
In 2015 a BC conservation officer was dismissed from his position for refusing to kill two bear cubs.
Initially, the conservation officer didn’t have the assistance of a lawyer and the issue of his dismissal was dealt with by a union representative and the Labour Relations Board.
Eventually, the conservation officer retained a lawyer who identified that conservation officers are peace officers and issues relating to their discipline or dismissal need to be dealt with pursuant to the Police Act.
After several years of litigation, the BC Court of Appeal finally determined that the Labour Relations Board lacked jurisdiction, and the case should have been deal with pursuant to the Police Act from the start.
Also discussed, in the context of the killing of George Floyd in the United States, are the special legal protections afforded police officers in Canada.
In Canada, the Criminal Code only protects peace offers that use force that is likely or intended to cause death or grievous bodily harm if the police officer believes, on reasonable grounds, that the force is necessary for self-preservation, or to protect someone the police officer is protecting from death or grievous bodily harm.
A police officer in Canada would not be permitted to choke off someone's air supply in order to punish them, make them more compliant, or easier to load into a police car while unconscious.
There are some special provisions in Canada that do permit a peace officer to use force likely or intended to cause death or grievous bodily harm in order to prevent an inmate from escaping a penitentiary, if the escape can’t reasonably be prevented by less violent means, as long as the officer believes, on reasonable grounds, that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm.
This could permit, for example, an escaping inmate to be shot even if a peace officer didn’t know if the particular inmate posed a threat to kill someone. There still would need to be no other reasonable way to prevent the escape, by less violent means for the defence to apply.
Finally, a case concerning the Civil Resolution Tribunal is discussed on the show.
The Civil Resolution Tribunal was established to adjudicate strata disputes, and small claims cases for less than $5,000. It’s intended to be an expedited, online, dispute resolution system.
Unfortunately, the legislation that created the Civil Resolution Tribunal requires parties to ask permission to have a lawyer represent them, unless they are a child, or suffer from a disability.
When a man sued the strata corporation in his building for $30,000 over a dispute concerning a patio repair, that strata corporation asked for permission to have their lawyer represent them.
Strata corporations would often be run by a group of volunteers, who may not have the time, experience, or interest, in personally conducting a case.
The adjudicator working for the Civil Resolution Tribunal refused the request and much litigation ensued, eventually resulting in the case going all the way to the BC Court of Appeal. That court concluded that the adjudicator had acted unreasonably in refusing to permit the strata corporation to have a lawyer help them. The case has now been sent back to be done again.
The poorly conceived legislation that permits the Civil Resolution Tribunal to prohibit a party from using a lawyer should be amended to remove this authority.
Follow this link for a transcript of the show and links to the cases discussed.
Can you be entrapped by phone? The Supreme Court of Canada has confirmed that you can.
One of the ways that entrapment can occur is if the police engage in random virtue testing: presenting an opportunity to commit a crime without a reasonable suspicion that the person being tested is already committing the crime, or that the crime is already occurring in the place where the police are testing random people.
An example of a place where police have a reasonable suspicion that crimes are being committed might be an area where illegal drugs are being sold frequently.
The Supreme Court of Canada concluded that a phone number, believed to be associated with illegal drug sales, could also constitute a place, like a street corner.
While a tip on unknown reliability that a phone number is being used to sell drugs would not be enough to constitute reasonable suspicion, the language used when the phone is answered could provide the reasonable suspicion necessary to ask and see if the person answering the phone is willing to sell drugs.
Also discussed is the US Posse Comitatus Act (1878), which is relevant to President Trump’s threat to use the US military to stop riots and looting which have accompanied peaceful protests over a police officer killing a black man by kneeling on his neck after he was handcuffed and laying on the ground.
A Posse Comitatus, at common law, is a group of citizens mobilized by a sheriff to suppress lawlessness, defend the country, or apprehend someone who has committed a serious crime.
The US Posse Comitatus Act restricted the use of the military to enforce domestic laws. Since it was passed, however, various amendments have been passed that permit exceptions to this limitation.
In Canada, while we do not have a history of using the posse, we do have section 67 of the Criminal Code which required a justice, mayor, sheriff, deputy mayor, or deputy sheriff to, upon being informed of a riot of 12 or more people, to attend as close as is safe and, in a loud voice, read, or cause to be read, the following:
"Her Majesty the Queen charges and commands all persons being assembled immediately to disperse and peaceably to depart to their habitations or to their lawful business on the pain of being guilty of an offence for which, on conviction, they may be sentenced to imprisonment for life. GOD SAVE THE QUEEN."
Once this has been read, if people don’t disperse, they commit and offence and are liable to imprisonment for life.
Finally, a Court of Appeal decision is discussed which concludes that you can be convicted for holding an electronic device while driving, even if the device is completely inoperable, or equipped with software that deactivates it in a car.
The decision makes clear that the legislation in question needs to be amended so as to avoid punishing people who are not engaged in an activity that is dangerous.
Follow this link for a transcript of the show and links to the cases and legislation discussed.
In Canada, the decision about whether or not to extradite someone to another country to face criminal charges has both a legal and political aspect.
The courts decide if the legal requirements for extradition have been met. If they have, it is then up to the Minister of Justice to determine if the person should actually be extradited.
The recent decision concerning Wanzhou Meng of Huawei dealt with one of the legal requirements: the offence the person is charged with, in the other country, must also be an offence in Canada. This is referred to as double criminality.
Ms. Meng is charged with fraud in the United States on the basis that she is alleged to have lied about Huawei's control of an Iranian company in order to secure a loan of $1.5 billion that would otherwise have been in violation of United States sanctions against Iran.
Ms. Meng’s lawyers argued that, because Canada didn’t have similar sanctions in place at the time she is alleged to have lied to obtain the loan, the requirement for double criminality hadn’t been met.
The judge disagreed with this argument and concluded instead that it was the “essence of the offence” that must exist in both countries. She reasoned that fraud can be committed in both the United States and Canada if you lie in order to obtain a loan.
Interestingly, fraud of this kind can occur even where the loan is repaid as promised. The theory of this is that the other party was put at risk: in this case, the banks were put at risk of being charged with violating the United States sanctions against Iran.
The way the Canadian justice system has dealt with Ms. Meng is in sharp contrast to how the two Canadians have been dealt with by China.
Ms. Meng is free on bail, living in a mansion in Vancouver, and is availing herself of the Canadian justice system that affords transparent hearings, with an independent judge, legal counsel and all of the other elements of a system premised on the rule of law.
In contrast, the Chinese government arrested two Canadian men days after Ms. Meng was arrested, in retaliation. The men have spent more than 530 days in jail, without bail and without a trial. Their names of the men are Michael Spavor and Michael Kovrig.
This conduct, by the Chinese government, will have no impact on the judicial process. It may, however, inform the Minister’s decision concerning extradition. Refusing extradition, in this context, would encourage future retaliatory arrests by China or other authoritarian regimes.
Also discussed on the show is a case involving a law firm that is suing Google, and an unknown person, for a review left on Google Maps. The law firm is in the process of obtaining a “Norwich order” to require Google to turn over IP, and other information, to reveal the identity of the person who left the review so that they can be named in the civil action.
Follow this link for a transcript of the show and links to the cases discussed.
COVID-19 is a consideration when deciding if someone should remain in jail while waiting for their trial.
In one federal penitentiary, located in Mission BC, 133 inmates and staff contracted the coronavirus.
As a judge recently pointed out, however, the risk of COVID-19 is not a “get out of jail free card.”
The overriding considerations when determining if someone should be kept in jail include whether they will attend court when required and if their detention is necessary for the protection and safety of the community.
In the case discussed, the accused person had a very long criminal record, including 14 convictions for property offences, 22 convictions for fraud, personation, and similar offences, and 13 convictions for breaching court orders. Given this, despite the risk of COVID-19, the judge concluded that it was necessary to detain the accused man, prior to his trial, in order to protect the safety of the community.
Also discussed is a letter from the Criminal Defence Advocacy Society, calling for a limited reopening of the Provincial Court for in-person appearances.
The Provincial Court deals with the large majority of criminal cases and, as the letter from the CDAS points out, many of the people accused of crimes suffer from addiction issues, mental health challenges, homelessness, and have no access to technology. As a result, solutions like Zoom hearings, which are working in the Court of Appeal, don’t work for many accused people in Provincial Court.
With the majority of criminal cases in Provincial Court having been adjourned since March, many people are being left subjected to bail conditions, with no meaningful way to access the justice system.
In other legal news, Texas is the first jurisdiction to attempt a jury trial using Zoom. The experiment ran into some challenges as a result of things including a juror who walked away from their computer to answer a phone call. The judge was unable to call the juror back because they were not wearing the headset connected to their computer.
Follow this link for a transcript of the show and links to the cases discussed.
Does failing to use a condom result in a lack of consent, or constitute fraud?
In a recent decision, the Court of Appeal split three ways on how failing to use a condom should be analyzed.
The case they were dealing with involved two people who had only met in person on one occasion before they decided to spend the night together. The complaint performed fellatio, without asking the accused to wear a condom, but then asked him to put one on before engaging in intercourse. Later in the night, the couple had intercourse again. The complaint didn’t realize that the accused hadn’t used a condom.
On the second occasion, when no condom was used, the accused was behind the complaint, and he asked her if it felt better. She said “yes” but thought the accused was talking about the position they were in.
At trial, the judge acquitted the accused, finding that there was no evidence that the complainant did not consent to the activity.
The Crown appealed the acquittal, and, in the Court of Appeal, all three judges ordered a new trial, but for different reasons.
One judge concluded that the complaint hadn’t consented to intercourse without a condom. A second judge concluded that the complaint did consent, but that the consent was vitiated by fraud. The third judge concluded that there was both no consent and, if she was wrong in that conclusion, then there was also fraud.
All three Court of Appeal judges struggled to interpret and apply a previous Supreme Court of Canada case where an accused used a condom that he had previously poked holes in. In that case, the complaint became pregnant. The Supreme Court of Canada concluded that, while the complainant had consented to the sexual activity, secretly poking holes in the condom constituted fraud and, as a result, there wasn’t consent as a matter of law.
Also discussed is a new practice directive form the BC Supreme Court that will permit accredited media to listen to telephone or video-based court appearances by phone so that COVID-19 doesn’t undermine the principle of an open court process.
Finally, a court decision terminating a spousal support order is discussed. The ex-husband, who is a doctor, had paid $700,000 in spousal support over the past 26 years. He is 70 years old, and about to retire. The recipient ex-wife is also 70 years old but, despite having a university degree, and real-estate licence, amongst various other qualification, never held a job for more than a year, and never become economically self-sufficient.
The judge that terminated the support order pointed out that an “indefinite” support order doesn’t mean that it is permanent. It simply refers to an order for support without a time limit at the time it is made.
Follow this link for a transcript fo the show, and links to the cases discussed.
Vancouver Island, population 870,000, only has 2 people in hospital with COVID-19, as of May 7, and a total of 18 people who have been identified with the virus, who have not recovered, according to the BC Centre for Disease Control.
In this context, the Public Health Act and the Emergency Program Act are discussed on the show. Both acts expressly contemplate different orders being made for different areas of the province.
If the number of people with COVID-19 reaches zero on Vancouver Island, consideration would also need to be given as to how such a state of affairs could be maintained. The number of infections in other areas of BC is greater than those on Vancouver Island.
Section 15 of the Public Health Act has a general provision that applies at all times: A person must not willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard.
Also discussed is the BC Provincial Court etiquette guide for people appearing by video link for hearings in court. Tips include not eating or drinking anything but water, not needing to stand up or bow for video appearances, and to dress appropriately. The Provincial Court dress guidelines include not wearing hats, short shorts or muscle shirts and wearing shoes. Essentially, people should dress like they were planning to attend a job interview and not the beach.
In other legal news, the Court of Appeal upholds a jury verdict that found the City of Burnaby to be 29% responsible for the burns suffered by a woman when a tenant of the house owned by the city threw a bucket of used motor oil on a fire, causing an explosion. The fire department had previously been called to the house for an out of control fire, with flames 20 feet high, and nothing had been done to remove the unlawfully installed fire pit.
The fire pit was described by the Court of Appeal as a tire rim “affixed to the ground by gravity”.
For links to the cases and legislation discussed, and a transcript of the show, follow this link.
In 2011 two men in Quebec wagered $517,000 on a best-of-three rock, paper, scissors game.
The man the lost took out a mortgage on his home to pay the debt but was successful in having the gambling contract, and mortgage set aside.
In Quebec, private contractual disputes are deal with pursuant to the Civil Code of Quebec, rather than common law principles of contract, that apply in other Canadian provinces.
The Civil Code of Quebec specifies that gambling contracts are only valid if they relate to activities “requiring only skill or bodily exertion on the part of the parties” rather than to chance. In addition, the amount of the wager must not be excessive.
The trial judge who originally decided the case found that rock, paper, scissors was not simply a game of luck because it called upon the skill of the parties in terms of the speed of execution, sense of observation, and in selecting strategic sequences.
The Quebec Court of Appeal disagreed with the trial judge and concluded that rock, paper, scissors was a game involving a large part of chance, and not only the skill or bodily exertion of the parties.
Both the trial judge, and the Court of Appeal, agreed however that the amount wagered was excessive and so the gambling contract, and resulting mortgage, was set aside.
Also discussed are continued efforts, by British Columbia courts, to manage the dislocation caused by COVID-19.
While the Court of Appeal will be back to full operation using Zoom for hearings, the trial courts are still trying to find ways to manage witnesses, juries, and other practical issues, safely.
The Provincial Court has now adjourned cases that were set until July 3rd. In an effort to mitigate what will otherwise be a potentially unmanageable backlog, the court will begin dealing with an increased number of less urgent matters by telephone, including criminal sentencing cases where a jail sentence is not being requested. Judges will also engage in pre-trial telephone hearings in an effort to encourage the resolution of outstanding criminal and family law cases.
Finally, a recently released family law decision from the BC Supreme Court involved the assignment of a replacement judge to decide a case, after the original trial judge became incapable of continuing after hearing a seven-day trial.
The replacement judge was able to listen to audio recordings of the trial, review the transcripts and exhibits, and hear submissions from the lawyers involved.
The replacement judge pointed out that while they were not able to observe the demeanour of witnesses in order to assess creditability, that this is only a small part of making this assessment, and that based on the material and audio recordings they were able to accomplish what was required without needing to start the trial over.
Follow this link for a transcript fo the show and links to the cases discussed.
The BC Court of Appeal will be back operating at full capacity thanks to Zoom.
After several weeks of dealing only with urgent matters, the BC Court of Appeal has announced that all oral hearings will proceed using Zoom. All material will be filed electronically. A desire to have an oral argument in person, rather than by Zoom, will not be a reason for an adjournment.
The Court of Appeal is able to make this change more easily than trial courts can because it does not hear from live witnesses and does not need to manage things like juries.
The Supreme Court of Canada has, for many years, both permitted lawyers to appear by video connection, and has video-recorded its hearing. Video recordings of hearing are posted on the court's web site.
While the constitutional requirement for public trials in criminal cases doesn’t apply to appeals, it would make sense to utilize the recording function in Zoom, and for the Court of Appeal to post the recordings of oral arguments in the same way that the Supreme Court of Canada does.
Also discussed on the show is a bail review decision, which resulted in a man who had been held in jail to await a series of fisheries offences being released.
The man was charged with various Fisheries Act offences including unlawfully possessing crabs, fishing without authorization, and being on board a fishing vessel when he was not allowed to be. He was originally detained, at the beginning of March, because he had been convicted of similar offences on 11 previous occasions.
Since the original order for detention, COVID-19 has made it completely uncertain how long it will take for the case to get to trial. As a result, the man could end up spending more time in jail waiting for his trial, than the sentence he would receive if he ever is convicted.
Accordingly, the judge ordered that the man be released, on house arrest conditions, until his trial. He will be required to reside with his mother, who will be acting as a surety.
Finally, a Family Law Act decision makes clear that a generalized concern about COVID-19 is not a reason to withhold a child from exercising access to a child pursuant to a court order.
The fact pattern of the case included a mother that did not want to return a child to a father because the father’s mother performs elder case in a care home, and lives with the father.
The court also made clear that parents who attempt to create fear in the mind of a child by suggesting the child is at risk by being in the care of the other parent, without any objective justification for doing so are not acting in the child’s best interests. Such parents who take this approach risk jeopardizing their own position for maintaining whatever parental responsibilities they enjoy.
Follow this link for a transcript fo the show and links to the cases discussed.
Should custody arrangements be modified where one parent is a nurse working with patients who may be infected with COVID-19?
In child custody cases, the core principle is always what’s in the best interest of the child.
A recent BC court decision set out factors to be considered when assessing a child’s best interest in a situation where a parent is working in an environment of known risk. These include whether the child has medical conditions placing them at higher risk if they are infected, whether either parent has people with elevated risk in their household, what the risk is of either parent contracting the virus, and what steps each parent is taking to mitigate the risk of exposure.
In a recent case involving an eight-year-old child, with a mother working as a nurse, the judge acknowledged that while there was some risk to the child from infection, this was offset by the benefit that the child received spending time with his mother.
The judge took into consideration steps that the mother was following to avoid infection: wearing hospital scrubs, leaving her shoes and clothing at work, wiping down her bag, showing as soon as she got home, and using bleach to clean her door handles.
The judge did direct the child’s parents to continue discussing risk factors, as they had been doing, and that if it became apparent there was an elevated risk to the child, that they should take appropriate measures to protect him.
During the 7 seven-day periods that the mother, who is a nurse, has custody of the child, she would not be working.
Other cases discussed in the episode include a circumstance where a parent with shared custody enters into a new relationship with a partner who also has a child with whom they share custody. This case involved an assessment of the steps being taken to avoid transmission from one home to another.
Two other categories of family law cases also raise issues of urgency are being dealt with by way of hearing conducted by telephone: child apprehension cases and applications to vary support orders.
Where a child is apprehended by the Director of Child, Family and Community Services, the relevant legislation has several provisions directing that hearing be conducted promptly. A recent decision confirmed that this is so, even in the context of COVID-19, and required that a hearing be conducted promptly, by telephone.
A final category of cases, which will need to be dealt with on an urgent basis, will be applications for the reductions in child or spousal support payments as a result of people losing their jobs. There is an obligation to bring applications to modify support orders promptly, rather than not paying and applying after the fact for a change in the order.
If support payments are reduced, or eliminated, as a result of unemployment, former recipients may have issues qualifying for the Canadian Emergency Response Benefit if they were not previously employed.
Follow this link for a transcript of the show and links to the cases discussed.
The Rent Distress Act governs the seizure of property by commercial landlords for the non-payment of rent. Its provisions are utilized in cases, including a recent court decision concerning the seizure and sale of a pizza oven, by a landlord in Tofino.
Unfortunately, in the context of the COVID-19 pandemic, the act is hopelessly out of date. It only permits a tenant to keep $200 worth of property relating to their trade and sets out an archaic list of other property that a tenant is allowed to keep. The list includes one cooking stove with pipe, one lamp, one washboard, two pails, one table, one clock, one broom, one shovel, three smoothing irons, and one chair, knife, spoon, fork and plate for each member of the debtor’s family.
A smoothing iron is a predecessor to the modern iron that you would heat up on your stove, to press your “ordinary wearing apparel” which a landlord would also be required to leave a tenant with. Why a tenant would be allowed three smoothing irons, but only one spoon, is a distinction lost in time.
Section 15 of the Rent Distress Act actually authorizes landlords to “break open a house” to seize property “clandestinely conveyed or carried away by a tenant or lessee”.
In the context of small businesses being forced to close due to COVID-19, the Rent Distress Act need to be updated promptly to prevent commercial landlords from seizing and selling equipment that restaurants, and other businesses, will need when they are permitted to reopen.
Also discussed is a recent message from the BC Supreme Court explaining why it is currently only able to hear urgent cases. The message points out that it would be unsafe to require people to serve on juries with 11 other individuals, or to be compelled to attend in person as a witness.
The other important point made by the court is that the justice system needs to be open and transparent: it must be accessible to the public. As discussed during the show, one solution to this might be to permit public access to the digital audio recordings that are made of all court proceedings in BC. That would facilitate hearings being conducted using Zoom, Skype, or other technology.
Finally, the different mechanisms, and considerations, for releasing people from jail to avoid infection are discussed. BC has already stopped 95 people from having to serve weekend jail sentences as these individuals would be low risk and having them come and go from jails each weekend would place them, and others, at risk.
Follow this link for a transcript fo the show and links to the cases and legislation discussed.
A single mother, who lives in a rural area 20 minutes from the nearest grocery store and pharmacy, was prohibited from driving by the BC Superintendent of Motor Vehicles as a result of two distracted driving tickets she received last year.
On an appeal to the BC Supreme Court, a judge agreed with the Superintendent of Motor Vehicles that they were not required to consider either the circumstances of the tickets or the hardship that a four-month driving prohibition would cause.
Section 93 of the Motor Vehicle Act allows the Superintendent of Motor Vehicles to prohibit anyone from driving if they conclude that their driving record is “unsatisfactory”.
A judge is only permitted to overrule a decision of the Superintendent if they conclude that the decision demonstrated palpable and overriding error, absent a legal error in terms of how the decision was arrived at.
While the judge concluded that the decision to prohibit the single mother from driving was not the result of a palpable and overriding error, she urged the Superintendent to consider delaying the start of the driving prohibition because of the COVID-19 public health emergency. The judge found that, because of the need to maintain physical distancing, the driving prohibition could remove the single mother’s ability to get groceries for herself and her children, and could potentially put her, her family, and others in the community at risk.
While there may be no legal obligation to consider serious hardship, or medical risk, that could result from driving prohibitions, it would certainly be desirable for the government to take these things into account in light of the current circumstances.
Also discussed is a decision by the government of Quebec to have police stop drivers entering the province from Ontario. Police checkpoints have been set up on the Quebec side of bridges from Ottawa to Gatineau and in other locations.
Drivers who are not coming for an “essential” purpose are being denied entry into Quebec.
This sort of provincial checkpoint may be unconstitutional. Section 6 of the Charter permits every citizen of Canada, and every person who is a permanent resident of Canada, to “move and take up residence in any province” and to “pursue the gaining of a livelihood in any province”.
While Charter rights in Canada are subject to reasonable limits, prescribed by law, that can be “demonstrably justified in a free and democratic society”, that exception is not likely to authorize the kind of checkpoints that Quebec has established. Limits must be fair, not arbitrary, carefully designed, and rationally connected to achieve an objective, proportionate, and must impair a Charter right as little as possible.
Follow this link for a transcript of the show and links to the cases and legislation discussed.
Bill C-13: a federal act respecting certain measures in response to COVID-19, has now received royal assent. Several elements of this legislation are discussed on the show.
Bill C-13 created the Emergency Response Benefits Act. This act will provide a monthly payment of $2,000 to people out of work. One important element of the act is that the monthly benefits will not be available to any worker who “quit their employment voluntarily”. So: don’t quit your job if you wish to remain eligible for financial assistance.
Another provision of Bill C-13, that has not received much public attention, are amendments to the Patent Act that permit the Minister of Health to authorize anyone to “make, construct, use and sell a patented invention to the extent necessary to respond to the public health emergency described in the application”. This would permit companies to manufacture things like ventilators, or drugs, that could otherwise be protected by a patent. There is provision for the payment of compensation to the owner of the patent.
Also discussed, in the context of the provincial Public Health Act orders, are the large number of homeless people who are camping, congregating, and lining up together, outside of the Our Place Society facility in the 900-block of Pandora in Victoria.
While Our Place has stopped providing some services, it is still providing three meals a day, washroom, and other services, from its single location. While all with the best of intentions, this has encouraged the unsafe gathering of large numbers of people in close proximity.
Meals, and other services, need to be provided in a distributed fashion, so as to remove the incentive for the large group of homeless people to continue congregating in one place.
Follow this link for a transcript of the show and links to the legislation discussed.
Both the BC Provincial Court, and BC Supreme Court have adjourned all, but the most urgent cases, scheduled from now until early May.
Urgent cases, that will proceed, include in-custody bail hearing, in custody criminal trial, and urgent cases including child protection, house evictions, refusal of treatment and end of life matters, orders under the Quarantine Act or the Public Health Act, or a variety of other urgent cases, as determined by a judge on a written application.
Witnesses, jurors, and others with cases scheduled prior to the beginning of May have been directed not to attend court unless they are specifically directed otherwise.
Both the BC Provincial Court and BC Supreme Court are providing frequently updated directions with respect to how cases, urgent or otherwise, are to be handled on their web sites.
In other legal news, both the province of BC, and the federal government, have legislation to address public health emergencies. Federally there is the Emergencies Act, and provincially there is the Emergency Program Act.
So far, the province is utilizing the legislation, but the federal government is not.
Both pieces of legislation permit temporary emergency government actions without the need for legislation to be passed in the ordinary way.
One of the interesting provisions of the provincial legislation is the power to “authorize or require any person to render assistance of a type that the person is qualified to provide or that otherwise is or may be required to prevent, respond to or alleviate the effects of an emergency or disaster”.
This authority would seem broad enough to allow qualified people to be “authorized” to provide assistance with things they might not ordinarily be permitted to do. This might include authorization for people with lapsed credentials, or training from other jurisdictions, to assist with medical care in an emergency.
As discussed last week, BC is the only jurisdiction in Canada without any Employment Standards Act requirement that employers provide any sick leave for employees. On that front, the premier has suggested this will be remedied in an emergency sitting of the legislature next week.
Follow this link for a transcript of the show and links to the legislation discussed.
BC is the only province in Canada where employers are not required to provide any sick leave. While various other forms of leave are required by the Employment Standards Act, including unpaid leave to care for seriously ill or injured family members, sick leave is not required.
Various other recent amendments to the Employment Standards Act are discussed along with a report assessing the desirability of requiring sick leave, either paid or unpaid.
Those opposed to mandatory sick leave point to Statistics Canada data that show the federal government employees, who are entitled to paid sick leave, take 13.5 sick days a year, compared to 8.4 days for private-sector employees. A culture of “taking a sick day” can undermine productivity, while the alternative of having sick employees attend work, to avoid losing pay, can also be very undesirable.
In the context of the current concerns over COVID-19, it would make sense for the government to, at least temporarily, amend the Employment Standards Act to require sick leave, and time off for employees who are quarantined. Such an amendment would facilitate the federal government’s decision to permit UI payments, in such circumstances, with no waiting period.
Also discussed is a case involving a home inspection of a house in Parksville. The purchasers of the home hired a home inspector who delivered a positive report. A few months after completing the home purchase, water was discovered to be running into the house from a sundeck. The cost of repairs was in excess of $350,000.
The inspection contract had a clause that limited liability to the cost of doing the inspection: $551.25.
The trial judge, and Court of Appeal, upheld the limit on liability finding that there had been no gross negligence, and the contract wasn’t unconscionable. The takeaway advise is that home inspection contracts, with limits on liability, don’t afford insurance for problems not noticed by the inspector.
Finally, a case involving a woman who slipped on a patch of back ice in a parking lot operated by the Town of Sidney is discussed. The claim was dismissed because municipalities are not liable for policy decisions not to clear snow and ice. Governments are only responsible if they make a policy decision to do something, and the policy is implemented in a negligent way. Here the decision to make the clearing of ice in the parking lot a low priority was found to be a legitimate policy decision.
Follow this link for a transcript fo the show and links to the cases and legislation discussed.
The Supreme Court of Canada has permitted a claim by workers at a mine in Eritrea to proceed, after concluding that Canada has adopted “customary international law” into the Canadian legal system.
The Eritrean miners brought the proposed class claim action against a British Columbia based mining company, which is a part-owner of the Eritrean mine where they work.
The miners are seeking damages for breaches of customary international law prohibitions against forced labour, slavery, cruel, inhuman or degrading treatment, and crimes against humanity. They allege that the Eritrean government has forced them to work at the mine, in terrible conditions, without pay, indefinitely.
The majority of the Supreme Court of Canada described modern international human rights law as “the phoenix that rose from the ashes of World War II and declared global war on human rights abuses.”
Also discussed on the show is a decision from the British Columbia Court of Appeal, which will permit a claim by a snowboarder against Grouse Mountain Resorts to proceed.
While attempting a run on the resort’s XL jump, the 20-year-old snowboarder suffered a significant spinal injury and is now a quadriplegic.
The Court of Appeal overturned the trial judge and found that the waiver on the back of the ticket, and posted at the resort, was not determinative. In order to be effective, the court confirmed that waivers of liability need to be sufficiently brought to the customer's attention before they purchase a ticket. Here the sign with the waiver was only visible after the ticket was purchased, and the waiver on the back of the ticket was both small, and not provided until the ticket was already purchased.
There is a larger public policy question to be considered concerning whether waivers of liability like this should ever be permitted. If they were not, it would likely result in increased ticket prices for dangerous recreational activities to cover the cost of insurance. If waivers are permitted, the effect is to shift the cost of caring for people who are injured to the public generally.
Finally, a case concerning the largest claim ICBC has ever experienced is discussed: In 2018, on two separate occasions, sulfuric acid was spilled on the highway near Trail BC, by a truck that was transporting it. The acid damaged thousands of cars, including 846 vehicles that were written off due to the extent of the damage.
The court decision will permit ICBC, and other insurance companies, to bring a single subrogated claim against the companies that allegedly spilled the acid on the highway.
Interestingly, if BC had a no-fault insurance scheme, as has been proposed, it is unlikely anything could be recovered from the companies that spilled the acid. This would not encourage more care to be taken when driving with dangerous goods.
Follow this link for a transcript of the show and links to the cases discussed.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
If BC moves to an ICBC monopoly no-fault auto insurance system, as has been proposed, the suggested avenues for a review of ICBC decisions would not be adequate, or fair.
Apart from an ombudsperson, and fairness offer, who would have no actual authority to correct unfair decisions by ICBC, what has been suggested is to use the Civil Resolution Tribunal.
The Civil Resolution Tribunal was designed to deal with very small civil and strata property disputes. It is not an appropriate mechanism for resolving disputes where one of the parties is a government-owned insurance company. This is because members of the Civil Resolution Tribunal are hired on short term contracts by the government of between 2 and 4 years, with the possibility of renewal.
Disputes should not be resolved by someone employed by the government that also owns the insurance company.
Unlike with an independent judge, a member of the Civil Resolution Tribunal may be legitimately concerned about keeping their job if they make decisions unfavourable to the government.
Also discussed on the show are the Criminal Code provisions that make it an offence to counsel someone to commit a criminal office. This is relevant in the context of people urging others to block highways or other infrastructure. The act of encouraging others to engage in this activity is, itself, a crime even if the suggested activity doesn’t occur.
Finally, a recent Supreme Court of Canada decision concerning s. 35 aboriginal rights in the context of a mining development that straddles Quebec and Newfoundland and Labrador is discussed.
The Supreme Court of Canada spends some time reviewing the nature of aboriginal title and confirming that it is not a right to sovereign control over territory.
As is the case with other forms of title to property, such as fee simple title to a home, Canadian, and provincial, laws still apply and, where there is a compelling public need to use the property the government is able to do so.
In the case of property held in a regular fee simple fashion, the provincial and federal governments can not only enforce laws on the property but can expropriate it for public purposes. That is how it’s possible to build highways, sewer systems, and other infrastructure even if a property owner doesn’t consent to this.
Suggestions that aboriginal groups retain sovereign control over land, or that aboriginal title affords a veto over the use of land, are inconsistent with Canadian law.
Follow this link for a transcript of the show, and links to the cases discussed.
Who decides if, how, and when, protesters who are blocking rail lines, ferries, driveways, or bridges are to be removed?
Both protesters, and politicians, have suggested that either the Premier of BC, or the Prime Minister of Canada should, or should not, remove protesters who are obstructing transportation infrastructure or natural gas pipeline construction. In many cases, these suggestions demonstrate a fundamental misunderstanding of how such decisions are made.
Neither the Premier of BC, or the Prime Minister of Canada, has the authority to direct the police to enforce, or not enforce, Criminal Code provision that prohibits the interference with property, or blocking of highways. They also have no authority with respect to the enforcement of court orders.
It would be completely undesirable for politicians to have authority over the conduct of police operations.
Police are permitted to arrest people, without a warrant or court order, if they commit a criminal offence. When protesters blocked the Premier’s driveway, for example, the police simply attended and arrested those involved for the criminal offence of mischief.
With respect to protesters who were physically obstructing the construction of the natural gas pipeline, the company involved obtained an order from a judge which directs the police to arrest anyone engaged in this activity. Political leaders have no authority to prevent this order from being carried out or direct how this should be done. Public Safety Minister Bill Blair recognized this and confirmed that it was for the RCMP to decide how the court order was to be enforced.
Similarly, despite various political debates, CN Rail has been obtaining injunctions in other provinces to compel the removal of protestors who are blocking rail lines. The Prime Minister has no control over this process.
The second topic discussed on the show are the finances of ICBC, in the context of the recent claims by the provincial government that dire financial circumstances at ICBC require a move to a monopoly no-fault insurance system. While such a change would leave injured people with less compensation and would eliminate independent review of ICBC decisions, it would, conveniently for the government, permit refund cheques to be mailed out to people shortly before the next provincial election.
In this context, ICBC’s finances are discussed. A review of ICBC’s financial statements reveals that, between March 31, 2018, and March 31, 2019, ICBC’s assets actually increased by $1.8 billion. This is more than the amount of money taken out of ICBC to balance the budget by the last provincial government.
The large increase in ICBC’s attests were a result of it paying out much less than it took in over this period of time.
Despite this result, in this same one-year period, ICBC avoided showing a large surplus by substantially increased it’s “provision for unpaid claims”. It increased this figure from $11.9 billion to $14.29 billion in one year. This amount is supposed to be an estimate of how much future claims could cost. The large change, in one year, is a cause for skepticism.
The politically convenient outcome of the proposed change: refund cheques before an election, is a good reason to look very carefully at the financial rationale for a proposal that would leave accident victims with less compensation and eliminate the ability of courts to independently review ICBC decisions.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
Follow this link for a transcript of the show and links to the cases discussed.
This week on Legally Speaking with Michael Mulligan: The ICBC no-fault system proposed by the NDP would save money by not providing compensation for the loss of future earning capacity.
Currently, with our fault-based system, if someone is seriously injured by a careless driver, they would be entitled to be put back into the position they would have been in had they not been injured. This could include a lump sum payment based on the current value of their lost future earning capacity.
The question for a judge is how much more would they have earned; had they not been injured.
Under the proposed ICBC no-fault system, whether someone is responsible for an accident or not, they would only be entitled to monthly payments based on their income at the time of the accident. This could be particularly unfair to young people who have just started working. A young person, with their first job following graduation, if permanently disabled, would only ever receive monthly payments based on how much they were making when they were disabled.
By moving to monthly payments for disabled people, rather than paying a lump sum, ICBC will be able to spread out their obligations for many years.
This helps explain how the government is planning to justify pre-election rebate cheques from an insurance company described as a financial dumpster fire.
By creating long term, underfunded, liabilities to make monthly payments, ICBC management would also help entrench a monopoly no-fault system because privatization would require these liabilities to be dealt with.
Also discussed on the show is the quia timet injunction obtained by Uber to stop the City of Surrey from issuing tickets to Uber driver for not having Surrey business licences, which Surrey would not issue.
A quia timet injunction is a special kind of injunction that prohibits future, rather than current, conduct. This kind of injunction may of some use to prohibit the pre-planned obstruction of buildings, roads, ferries, and other infrastructure by natural gas pipeline protestors.
Finally, a new trial is ordered in a case where a judge found that a Saanich police officer assaulted a man he pulled over. The trial judge found that the police officer seriously injured the man, however, the municipality of Saanich didn’t have to pay because they hadn’t been provided written notice within 2 months of the incident. The police officer also avoided having to pay for the man’s injuries because the Police Act exempts officers form personal liability unless they engage in “dishonesty, gross negligence or malicious or wilful misconduct”.
The Court of Appeal ordered a new trial because the trial judge had not considered whether the officer who assaulted the man had engaged in “malicious or wilful misconduct” which is different from “gross negligence”.
Follow this link for a transcript of the show and links to the cases discussed.
On the show this week: The Canadian Quarantine Act, and BC Public Health Act powers to quarantine people or order treatment in response to the Wuhan Coronavirus, as well as an analysis of the NDP government’s latest proposal for no-fault car insurance.
The Canadian Quarantine Act and BC Public Health Act provide broad powers to control communicable diseases such as the Wuhan Coronavirus. These include the authority to prohibit entry into Canada by people who have been to a foreign country, or part of a foreign country, in circumstances where there is no reasonable alternative to prevent the introduction or spread of a disease that would pose an imminent and severe risk to public health.
The Quarantine Act imposes an obligation on people to disclose if they might have a communicable disease and the BC Public Health Act obliges people not to willingly cause a health hazard, or act in a manner that a person knows, or ought to know, will cause a health hazard.
If required, any private place may be designated as a quarantine facility for the purpose of isolating or detaining infected people for the purpose of protecting public health.
The latest proposal by the provincial NDP government to introduce a no-fault car insurance system is also discussed.
This is the second time an NDP government has attempted to introduce a no-fault system. On the last occasion, back in 1997, this was so unpopular the idea was abandoned.
A no-fault system is designed to save money by not spending any money determining who was responsible for an accident.
A careless diver, who causes a car accident, would be treated the same way as an innocent person they injure.
It is for this reason that no-fault system insurance systems are inconsistent with the idea that people should be responsible for the harm they cause.
While generally good news for careless drivers, who may save money on their car insurance, no-fault regimes can both remove incentives for people to drive safely, and inadequately compensate innocent people who are seriously injured.
Should this proposal for a no-fault system become law in British Columbia, people injured in car accidents could expect similar treatment to that provided by WorkSafeBC (WCB) and would have no meaningful ability to challenge decisions made by ICBC in court.
Follow this link for a transcript of the show and links to the legislation discussed.
On the show this week: ICBC. The government-owned insurance company has run into financial difficulty as a result of both how the company has been operated, and political decisions to take money that it had been saved for the purpose of paying claims out of the company in order to balance the provincial budget.
Currently, drivers who are at fault for an accident are responsible for it. In some circumstances, such as where a driver is convicted of impaired driving, dangerous driving, or failing to remain at the scene of an accident, they would be in breach of their insurance coverage and they would be personally responsible for repaying ICBC for any loss.
There has been some suggestion that BC should move to a no-fault system, in which it would not matter who caused an accident. This would save money by avoiding litigation concerning who was responsible for an accident but might be inconsistent with community values that people who cause accidents should be responsible for them.
Recently announced changes would create an in-house ombudsperson, to review complaints. This is a ponderous idea as BC already has an ombudsperson and an auditor general. Duplicating these functions inside ICBC doesn’t seem likely to be beneficial.
Another initiative involves having ICBC offer some money to people who suffered a loss, without removing their ability to sue later. This proposal needs to be considered in the context of ICBC’s frequent attempts to settle claims for less than would be awarded if the cases were decided by a judge.
If people who are injured are offered, and accept, less than their claim is worth, either because they are desperate, or don’t have proper legal advice, this may make it uneconomic to sue ICBC later for the difference between this amount, and what they should have been paid.
Fundamentally, ICBC needs to be directed to change its approach to claims. If a claim is legitimate, ICBC should be promptly offering people what would be expected if they went to court. This would be both consistent with the duty of a publicly owned insurance company to treat people fairly and would save significant resources that are currently spent litigating claims.
Despite ICBC claims to the contrary, a review of cases that do proceed to trial demonstrates that ICBC is continuing to offer people less than the amounts be awarded in court.
Finally, the role of ICBC in administering things like drivers’ licences and paying for police traffic enforcement should be reconsidered. These are ordinarily government functions, that would not be paid for by private insurance companies. Having ICBC pay for these things is no different than taking money out of ICBC to pay for government programs.
Follow this link for a transcript of the show and links to the cases discussed.
Topics discussed on the show this week include the Supreme Court of Canada refusing an application by the City of Victoria for leave to appeal a decision by the BC Court of Appeal that the city lacked jurisdiction to ban plastic bags.
In addition, various politicians have mischaracterized the nature of an interim injunction prohibiting blockades, and other self-help remedies, by individuals opposed to the construction of a natural gas pipeline.
A federal Green Party member of parliament suggested that the premier of BC, or the Prime Minister of Canada, should “call off the RCMP” from enforcing the injunction.
Neither the premier nor the prime minister, have the authority to “call off” the RCMP. Because protesters had not voluntarily complied with a previous injunction, imposed a year ago, the BC Supreme Court judge hearing the case ordered the RCMP to enforce the injunction against physically blocking construction.
The obligation of the RCMP to prevent protesters from blocking the construction of the pipeline is a result of the court order and not a political decision.
A number of young people, who apparently misunderstood who had the authority to decide how the matter was going to proceed, occupied the Ministry of Energy, Mines & Petroleum Resources building in Victoria. After fifteen hours, the police carried the protesters out of the building and released them without charges.
In this context, a City of Victoria Councillor unfairly alleged that “there is always a high risk that police will use violence” when dealing with protesters.
What appears to be either uninformed or politically motivated, mischaracterizations of the court-ordered injunction are most unfortunate.
It would be wise for anyone who is inclined to wade into the pipeline issue, the role of the elected first nations representatives, Wet’suwet’en hereditary chiefs, the RCMP, or the government, to actually read the judge’s reasons for judgment.
The background, context and reasons really do matter.
Finally, a tribute to Ted Hughes, the former judge, and lawyer, who passed away on January 17, at age 92, after making a numerous contribution to the Canadian legal system.
Follow this link for a transcript of the show and links to the cases discussed, including the judge's reasons for issuing the injunction.
Two new British Columbia Court of Appeal decisions are discussed on the show this week.
When can you sue a municipality for an injury caused by poorly cleared snow?
The Court of Appeal provided some clarity in a recent case against the City of Nelson. The plaintiff suffered a serious leg injury after stepping into a snowbank trying to get from an angled parking spot to the sidewalk.
While a municipality is not liable for injuries caused by policy decisions, such as whether to clear the snow or not, they can be liable when a policy decision is poorly implemented, and this causes a hazard. The legal distinction is between “policy” and “operation”.
The second case discussed involved a 14-year-old who was diagnosed with gender dysphoria and wished to undertake hormone therapy following a social transition from female to male at age 12.
The child’s parents had been separated for several years and, while the child’s mother supported the treatment, the father opposed it.
Various court application ensued and an order was made against the father declaring that his references to the child as a girl, whether directly or to third parties, was a form of “family violence” pursuant a definition of this term in the Family Law Act that includes things like “psychological or emotional abuse of a family member.”
The father was ordered not to attempt to persuade the child to abandon the treatment, not to refer to the child by his birth name, and not to refer to the child as a girl or with female pronouns to the child, or any third parties.
The unfortunate language used in the Family Law Act, which defines “psychological or emotional abuse” as “violence” seems to have made this dispute worse, as the language is inconsistent with any ordinary meaning of the term “violence”.
While the conduct of the father, in refusing to accept the child’s chosen gender, and to refuse to address him by the name he had chosen was found to be disrespectful and hurtful, the Court of Appeal found that, despite the incongruent definition in the Family Law Act, this should not have been characterized as family violence.
The Court of Appeal also modified the lower court order which prohibited the father from discussing the matter with the child or expressing his opinion to the friends or family members.
The hormone therapy continued, without the approval of the father, because section 17 of the Infants Act permits minors to consent to their own medical treatment.
Legally Speaking with Victoria Lawyer Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
Links to the cases discussed, and a transcript of the show can be found here.
The Motor Vehicle Act distracted driving provisions are in need of an update in order to both provide clarity, and to address technological changes that have taken place over the past ten years.
As a result of the outdated, and confusing, legislative scheme even police officers who are charged with enforcing the scheme are having difficulty interpreting the provisions.
Recent advice, offered by a senior police officer, concerning when and how electronic devices can be used was, unfortunately, misleading.
The Use of Electronic Devices While Driving Regulations permit someone, who is not a new driver with a class 7 or 7L licence, to use the hands-free telephone function of an electronic device, which is properly secured to a motor vehicle, within easy reach of the driver’s seat, or worn securely on the person’s body, by touching it once in order to start or end a phone call.
This “one-touch” exception to the general rule prohibiting the use of electronic devices, only applies to hands-free phone calls. It does not permit the use of a device for some other purpose by touching it once.
There is a separate provision that permits a “Hand-held audio player” to be used, as long as it’s not held in a person’s hand, and is “securely fixed” to the vehicle or “worn securely” in a way that does not obstruct vision or interfere with the safety or operating equipment of the vehicle and as long as the sound “is emitted through the speakers of the sound system of the motor vehicle”.
While the “Hand-held audio player” exception makes no reference to the device only being touched once, "Hand-held audio player" is not defined. It seems to be a relic from the days of stand-alone iPods. This has the real possibility of creating uncertainty and confusion when a modern, multi-use, a smartphone is being used to play music in a car.
Also discussed on this week’s episode of Legally Speaking with Michael Mulligan, are the Montreal and Warsaw Conventions, which limit the liability of airlines for the death or injury of passengers on international flights.
The Montreal Convention has been implemented in Canada by the Carriage by Air Act. This limits the liability of airlines to approximately $175,000 in the event of a passenger being killed on an international flight. In some cases, this may not be enough money to support surviving family members.
The final case discussed was from Port Alberni and involved an evangelical Christian mother claiming that a public elementary school interfered with the religious freedoms of herself and her children by demonstrating the indigenous practice of smudging and having her children see an indigenous dance performance, in the midst of which the dancer said a prayer.
Ultimately, the judge concluded that the mother had not established that the Nuu-chah-nulth smudging in her children’s classrooms or the prayer said by the hoop dancer at the school assembly, interfered with her or her children’s ability to act in accordance with their religious beliefs.
By way of context, until 1989, the School Act required that public school days be opened by the reading of a passage of Scripture followed by the recitation of the Lord’s Prayer.
A transcript of the show, and links to the cases discussed, can be found here.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
Three Chinese scientists were sentenced to jail for editing the genes of three fetuses in an attempt to provide immunity from HIV. The scientist used CRISPR in an attempt to disable the gene that allows the HIV virus to enter a cell.
The fathers of the children, who appear to be healthy, had HIV. Their mothers did not.
The three scientists announced what they had done at a 2018 conference in Hong Kong and, shortly thereafter, disappeared. They had been in Chinese custody and were recently sentenced to between two and three years in jail, after they plead guilty to practicing medicine without a licence, at a non-public hearing.
The concern with the activity of the scientists is that the genetic changes they made to the fetuses were subject to being passed along to future generations, and the effects are not known.
In Canada, the Assisted Human Reproduction Act prohibits the alteration of “the genome of a cell of a human being in vitro embryo such that the alteration is capable of being transmitted to descendants” in. Doing so is punishable by up to five years in jail.
Other things prohibited, by this act in Canada, include the creation of human-animal hybrids, the transplantation of human fetuses into animals, or animals or animal fetuses into humans. It is also unlawful to “maintain an embryo outside the body of a female person after the fourteenth day of its development following fertilization or creation, excluding any time during which its development has been suspended”.
Also discussed on the show are two proposed class actions.
One proposed class action, against Shaw, alleges that Shaw participated in an “unlawful pricing scheme” involving routine discrimination against existing and potential customers by offering a discounted rate exclusively to individuals who communicated with Shaw in either Mandarin and/or Cantonese.
Shaw denies the allegation and was successful in an application for a summary trial, prior to deciding on an application for the certification of the claim as a class action.
The other class action involved a successful appeal to the British Columbia Court of appeal, in order to certify a class action on behalf of employees of the University of Victoria, who were subjected to a wage freeze from 2013 – 2016 as a result of an emailed direction from the then Minister of Finance.
Follow this link for a transcript of the show and links to the cases discussed.
Legally Speaking with Michael Mulligan is live on CFAX 1070 Thursdays at 10:30 am.
The Supreme Court of Canada has ruled that a man, born in Canada, to parents who were undercover Russian spies, is a Canadian citizen.
This decision, and two others, including a finding that the CRTC does not have the power to require US Super Bowl ads to be shown in Canada, formed the basis of an effort to clarify how courts should deal with the review of administrative decisions.
There are two standards of review when courts are asked to review administrative decisions. These standards are “reasonableness” and “correctness.”
The usual standard of review by a court will be whether a decision was reasonable. This is what was applied in the case of the child of the Russian spies. A decision will be reasonable if it is logical and makes sense in light of the law and facts. In that case, the Supreme Court of Canada concluded that it was not reasonable to deny the child of the Russian spies Canadian citizenship, given the presumption that someone born in Canada is a citizen, and the wording and history of the exceptions to this.
The other standard of review is whether a decision was correct. This standard of review will apply in circumstances including where there is an issue about the legal authority to make a decision at all. That was the case with the CRTC decision: The Supreme Court of Canada concluded that the CRTC lacked the legal authority to require US Super Bowl ads to be shown in Canada. This wasn’t simply a matter of whether this was a reasonable decision to make.
Also discussed on the show was a case involving a British Columbia class action against Ticketmaster, concerning whether Ticketmaster was unlawfully facilitating the automated purchase, and resale, of tickets on a website that is owned by Ticketmaster: StubHub.
The claim alleges breaches of the Business Practices and Consumer Protection Act, as well as the Competition Act.
Ticketmaster provides software, called TradeDesk, which assists with organizing and reselling tickets.
The court decision denied an application by Ticketmaster to stop the British Columbia class action because similar cases were proceeding in Saskatchewan, Ontario, and Quebec.
Finally, the considerations for a judge when deciding on the period of parole ineligibility, following a second-degree murder conviction, are discussed.
A transcript of the show and links to cases discussed can be found here.
The first topic on the show: Sperm, recovered from a man shortly after his death, pursuant to an interim court order, will not be provided to the man’s wife because the man had not provided his written consent before he died.
The Assisted Human Reproduction Act requires written consent for the “removal of human reproductive material” from a donor’s body, after death, for the purpose of creating an embryo.
In this case, the sperm had been collected and stored, pursuant to an emergency, after hours, court order in order to permit the case to be argued. The medical evidence was that the collection needed to occur within 36 hours of death. Not making the interim order would have prevented a meaningful, legal decision.
The evidence before the judge was that the husband had hoped to have more children, and siblings for the couple’s young daughter, but neither he, nor his wife, had contemplated this occurring prior to the sudden, and unexpected, death of the husband.
The second topic on the show: the transfer of a transgender, female, inmate to a jail for men was done in a procedurally unfair fashion and needs to be reconsidered.
The inmate did not argue that her transfer to the Surrey Pretrial Centre was unconstitutional, or in violation of the Human Rights Code. Instead, she argued that the decision was unreasonable, and made in a procedurally unfair way.
The judge, in this case, concluded that the way the decision was made and reconsidered, was procedurally unfair because the inmate was not given the reasons for the initial decision, and when she made a written request that it be reconsidered, nothing of what she said was dealt with in an unsuccessful, reconsideration decision.
As a result, B.C. Corrections will be required to reconsider the transfer decision, in light of what the inmate had to say.
Procedural fairness, in these circumstances, doesn’t dictate a particular outcome but does require an inmate to have notice of the decision, an opportunity to be heard, and to be given reasons for a transfer decision.
Finally, the case of a man who passed away without a will, but having left three, short, handwritten notes, is discussed.
Section 58 of the Wills Estates and Succession Act allows a judge to give testamentary effect to a document that was not properly executed as a will if satisfied that the document represents the testamentary intentions of the deceased.
Here, while only one of the notes was signed, there wasn’t any dispute that the deceased man had written them.
As the deceased man was never married and had no children, if the notes were not applied, his assets would have gone to the estate of his brother, who passed away 5 months after the man who wrote the notes.
Ultimately, the judge did give effect to the note that left money, in two bank accounts, to the man’s long-time girlfriend. The girlfriend was not well off, having worked as a chambermaid for many years before having to stop work in 2008 as a result of ill health.
While the man was not wealthy and was a long-term resident of a room at the Canadian Hotel on Seymour Street in Vancouver, it turned out that he had $272,042.35 in his bank accounts at the time of his death.
Follow this link for a transcript of the show and links to the cases discussed.
Police officers in Montreal believed that a warning picture on an escalator, suggesting that people hold the handrail, made this a legal requirement. The police officers ordered a woman to hold onto the handrail and, when she refused, they arrested her, placed her in handcuffs, searched her purse, and issued her a ticket for not holding onto the handrail.
After being acquitted of the non-existent offence of failing to hold onto the handrail, the woman sued the police officers.
The woman was unsuccessful both at trial and on appeal to the Quebec Court of Appeal. Both of these courts held that the woman was the author of her own misfortunate and that she should have just obeyed the police officers. The Supreme Court of Canada, however, disagreed and awarded the woman $20,000 plus court costs, as a result of her unlawful arrest.
The Supreme Court of Canada concluded that people should not have to put up with being unlawfully arrested, and such actions should not be trivialized.
Also discussed are various ways people can breach the terms of their ICBC insurance coverage. The Insurance (Vehicle) Act and corresponding regulations set out the terms of ICBC insurance coverage, much like an insurance contract would in the case of private insurance.
Part 5 of the Insurance (Vehicle) Act regulations set out numerous ways in which you can breach the terms of your ICBC insurance. If you are in breach you effectively have no insurance and can be personally responsible for paying for any loss or damage you cause.
Some of the ways you can breach your ICBC insurance coverage are relatively clear: a conviction for a Criminal Code driving offence, or driving while prohibited, for example.
Other ways you can end up in breach include more ambiguous and include activates such as operating a vehicle “for an illicit or prohibited trade or transportation” or “if the insured is not authorized and qualified by law to operate the vehicle”. These may be relevant in the context of ride-sharing regulations.
Finally, a Law Society citation for a lawyer who conducted a press conference is discussed. The Law Society rules respecting the need to keep client information confidential, and circumstances in which a lawyer is permitted to provide information to the media are discussed.
Follow this link, for a transcript of the show and links to the cases discussed.
What’s required for three people to be listed as parents on birth certificates, for children of a same-sex couple, who were conceived with sperm from a friend, who also wished to participate in raising the children?
The British Columbia Family Law Act attempts to contemplate a wide range of modern scenarios, involving surrogates and other assisted reproduction. Unfortunately, not every eventuality can be anticipated, as demonstrated by a recent court case.
Two women, in a long term committed relationship, with the assistance of sperm donated by a male friend, entered into a verbal agreement to conceive two children. Everyone involved agreed that all three people would cooperate in raising the children.
After one of the children was conceived, the trio reduced their agreement to writing.
Unfortunately, the Family Law Act specified that such an agreement needed to be in writing, prior to a child being conceived. As a result, the Registrar of Vital Statistics refused to register all three people as parents.
While the second child was conceived after the agreement was put in writing, another problem arose: the online form to register the birth of a child only has two spaces for parents’ names to be listed. The two mothers listed their names and the trio sent a letter, the same day, to the Registrar of Vital Statistics asking to have the father added to the registration. The Registrar refused to make the requested change.
While the judge who heard the case found that the Family Law Act attempted to deal with every possible circumstance, the language of the act permitted a judge to intervene where there was “any uncertainty” and this was sufficient to permit the wishes of all three parents to be accommodated such that they could all be listed on the birth certificate of the first child.
As for the online form, with only two spaces for parents to be listed, the judge utilized language that permitted the correction of a “technical error” so as to add the father to the birth registration. The online form has not been updated and parents in a similar circumstance should contact The Registrar of Vital Statistics directly, rather than filling out the form.
Also discussed is a Court of Appeal decision dealing with the impact on sentencing where someone pleads guilty but disagrees with aggravating facts being alleged by the Crown.
While a sentence would never be increased as a result of an accused person choosing to have a trial, there can be a reduction in sentence as a result of a guilty plea because it can demonstrate remorse, avoid a complaint from needing to testify, and save time. Where someone pleads guilty but denies aggravating factors alleged by the Crown, a hearing can still be required. How much, if at all, a sentence should be reduced in these circumstances can depend on whether the Crown is successful in proving the agitating circumstances alleged.
Finally, a case from Ontario is discussed. At the height of the housing boom in 2017, the defendant made an unconditional offer to purchase a home. The offer and an $80,000 deposit were accepted by the seller. Before the deal was set to complete the Ontario government introduced a 15% foreign buyers tax and the housing market fell by 20 – 30%.
The buyer did not complete the purchase and the sellers ended up selling the home for $600,000 less than the accepted, unconditional offer.
While the prospective purchaser argued that the contract had been “frustrated” by the introduction of the foreign buyers tax the Ontario Court of Appeal disagreed and ordered her to pay the $600,000.
Follow this link for a transcript of the show and links to the cases discussed.
In British Columbia witnesses who are testifying in court are required to choose between swearing a religious oath, or making an affirmation, to tell the truth.
Children under 14 are only asked to promise to tell the truth.
The origin of oaths, to tell the truth, was a belief that divine retribution would visit those who lied under oath.
While witnesses are not told they have the option to swear an oath on something other than a bible, that is permitted.
Alberta recently announced that they are providing eagle feathers for witnesses who wish to swear an oath using those.
In British Columbia courts have permitted a wide range of witness oaths including a Scottish Oath that involves a raised right arm, rather than holding a bible in the right hand, while swearing the oath.
The origin of holding up your right hand seems to have come from Roman law where the penalty for perjury included having your right hand branded.
One of the more elaborate oaths, that was previously used in British Columbia, by some Chinese witnesses, was the Chicken Oath. This involved the witness being handed a piece of paper with the following writing:
Oath made by … witness signs his name … being a true witness, I shall enjoy happiness and my sons and grandsons will prosper forever. If I give false evidence I shall die on the street, Earth will destroy me, and I shall forever suffer in adversity, and all my offspring will be exterminated. In burning this oath, I humbly submit myself to the will of heaven which has brilliant eyes to see.
The following instructions were then provided for the Court Clerk:
The witness having signed his name twice, and a cock (male chicken) having been procured, the court (and jury, where applicable) adjourns to a convenient place outside the building where the full ceremony of administering the oath is performed. A block of wood, an axe of a knife, not less than three punk sticks, a pair of candles and a joss paper being obtained, Chinese candles are stuck in the ground and lighted. The oath is then read out loud by the witness, after which he wraps it in joss paper as used in religious ceremonies. The witness then lays the cock on the block and chops its head off, then sets fire to the oath from the candles and hold it until it is consumed.
Efforts, in British Columbia, to accommodate differing religious preferences were certainly preferable to earlier English decisions, some of which refused to permit any evidence from “Infidels” on the basis that they did not believe in a God.
Rather than adding more options for different religious oaths, and requiring witnesses to declare their religion, or lack thereof, before testifying it would make more sense to ask all witnesses to affirm or, as is the practice in some places, to “swear or affirm”, without inquiring which option someone is choosing, and without presenting them with a religious text of any kind.
Continuing to permit witnesses to perform different religious ceremonies before giving evidence runs the risk that, particularly juries, might take this choice into consideration when assessing the evidence of a witness.
Also discussed is a British Columbia Supreme Court case that involved a Langley blueberry farm that went into foreclosure: the two brothers who owned it were found to have killed all the blueberry bushes with herbicide before turning it over to the new owners.
Finally, the second application, in two years, by the Victoria and Esquimalt Police Board to have the Victoria and Esquimalt municipalities ordered to provide adequate law enforcement is discussed.
Follow this link for links for the cases discussed and a transcript of the show.
With Saanich schools closed for a third week as a result of a strike, 2019 amendments to the Labour Relations Code are discussed. These amendments removed a specific provision that declared “the provision of educational programs for students and eligible children under the School Act” to be an essential service.
This change was an example of the labour relations changes made each time the NDP is elected, or defeated, in British Columbia.
This same legislation, Bill 30, would also have included a provision removing the right to a secret ballot for union certification, however, the British Columbia Green Party advised the NDP that they would not support the other changes if that was included so it was removed.
While the language that remains in the Labour Relations Code dealing with strikes or lockouts that “poses a threat to the health, safety or welfare of the residents of British Columbia” has previously been interpreted by the Labour Relations Board to include education, in some circumstances, this would be more contentious.
In order to engage any of the essential service provisions of the Labour Relations Code, action is required by the Minister of Labour: Harry Bains. He is the minister who introduced the legislation to remove the express provision designating education as an essential service. His background includes 15 years as an officer of a steelworkers-IWA union local. Unsurprisingly, he has not acted to engage the remaining provisions of the Labour Relations Code in order to end the strike.
Other legal news discussed include the announcement by the province of $2 million in funding to open 8 poverty law clinics.
The provincial funding will be provided through the Law Foundation, which will afford some degree of separation from the province as the poverty law issues the clinics will assist with could involve the provincial government as a party.
Prior to a 40% cut to legal aid funding in 2002, British Columbia had more than 40 legal aid offices, that assisted more than 40,000 people a year with poverty law issues. These issues often related to housing or disability claims. Since that time, no legal assistance was available for issues like these.
Finally, a donation of $30 million by a graduate of the UBC Law School is discussed. That donation included an agreement to rename the law school the “Peter A. Allard School of Law” and to include this name on degrees issued by the law school. Unfortunately, for Mr. Allard, it turns out that postgraduate degrees, such as LLM and PhDs, are not granted by the faculty of law, but rather the faculty of graduate and postdoctoral studies. These degrees never had the name of the law school on them and so, don’t include the new name of the law school.
In an attempt to force UBC to include his name on these degree, Mr. Allard took the matter to arbitration. He was unsuccessful and is now going to court in an attempt to overturn the arbitrator’s decision. Unfortunately, this has created the appearance of transforming a generous gift into a contractual dispute over the sale of naming rights.
Follow this link for a transcript of the show and links to the cases and legislation discussed.
After almost two weeks Saanich schools are still closed as a result of a strike by support staff.
Support staff are seeking a wage increase to match other school districts. The support staff ended up with lower salaries as a result of past contracts that provided for greater benefits, instead of larger salary increases.
The Saanich School District has offered all of the money they are permitted to pursuant to a provincial bargaining mandate. This amounts to an overall 6% increase in pay over a three-year period of time. Larger increases were offered for lower-paid employees, funded by, amongst other things, a reduction in benefits. The union has rejected the offer.
The dispute is at an impasse because other public sector unions in British Columbia have negotiated “Me Too” clauses in their contracts that provide that they would automatically receive a pay increase if any other public sector union is able to get more than a 6% pay increase. The effect of this would be to cost the province hundreds of millions of dollars for any pay increase of more than 6%.
In some jurisdictions, public service employees have an unfettered right to strike. In other jurisdictions, there is no right to strike at all and collective agreements are arbitrated. In British Columbia, we have a “controlled strike” model.
One of the controls on public service employee strikes is provided for in section 72 of the Labour Relations Code. That section permits services to be designated as “essential.”
Previous decisions of the Labour Relations Board have concluded that, in some circumstances, education is an essential service because an extended strike or lockout would cause an “immediate and serious danger to the health, safety, or welfare of the residents of British Columbia”.
The process to designate a service as essential can commence by way of a request from one of the parties to the dispute. In this case, the Saanich School District could make a request to the chair of the Labour Relations Board.
Following a report from the Labour Relations Board, or on his own initiative without a report, the Minister of Labour can then direct the Labour Relations Board to designate a service as essential.
The Labour Relations Board would then be required to determine exactly which services are essential.
A previous decision of the Labour Relations Board is discussed. This decision determined that disruption of educational services, for more than two weeks, may create immediate and serious danger to the welfare of the residents of British Columbia: the students who are impacted.
The mandate letter, sent to Harry Bains by the premier, when he was appointed as Minister of Labour, directs him to, “ensure that children get access to the quality public education they need to succeed…”
Also discussed in the episode are limitation periods for police investigations.
Except for some minor offences, such as public nudity, most offences can be proceeds with either summarily, or by indictment.
When charges are proceeded with summarily, there is a 12-month limitation period. This was recently extended from 6 months.
The Crown can, however, choose to proceed with most offences by indictment and, in this case, there is no limitation period. There are, however, additional procedural protections that are engaged such as the right to a jury trial.
Finally, a class action case against a number of British Columbia credit unions is discussed.
Links to cases discussed, and a transcript of the show can be found here.
Canada, and British Columbia, have a very unfortunate history of racist legislation intended to restrict Chinese immigration. This includes the Chinese Immigration Act (1885), which imposed a head tax, the Opium Act (1908) which was passed following anti-Asian riots in 1907 that involved destruction in Vancouver’s Chinatown as well as Japanese neighbourhoods, and the Chinese Immigration Act (1923) which banned new Chinese immigration all together.
It’s in this historical context that 2016 amendments the Property Transfer Act, which imposed the Foreign Buyers’ Tax, were challenged in court.
Jing Li, a citizen of the People’s Republic of China, moved to Canada in 2013 to study public administration at the University of Saskatchewan. In 2016 Ms. Li purchased a property in Langley British Columbia. After paying a deposit, the Foreign Buyers’ Tax was implemented and she was required to pay an additional $83,850 in tax, on a $559,000 property, because she was not a citizen, or permanent resident, of Canada.
The court challenge brought by Ms. Li argued that the Foreign Buyers’ Tax was outside of the jurisdiction of the Province of British Columbia, because “Naturalization and Aliens” are matters of federal jurisdiction in Canada. She also argued that the tax was unconstitutional because it breached section 15 of the Charter which says: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
A previous British Columbia court case concluded that section 15 of the Charter prohibits discrimination on the basis of citizenship, because it’s a characteristic analogous to the others which are listed.
In rejecting her claim, the trial judge concluded that the Foreign Buyers’ Tax discriminated based on immigration status, and not citizenship, because permanent residence are exempt from the tax.
The trial judge went on to conclude “While the majority of transferees after the Tax was enacted and until November of 2017 have been citizens of Asian countries, particularly China, that does not mean that the Tax adversely affected Asian buyers in particular.”
In reaching his decision, the trial judge refused to admit expert evidence from Professor Henry Yu, an Associate Professor at the Department of History at the University of British Columbia. Professor Yu’s report consisted of a historical review of discriminatory laws against Chinese in British Columbia and elsewhere.
In rejecting Professor Yu’s report, the trial judge said this “In my view expert evidence is not required to establish that such discriminatory laws were enacted in British Columbia many years ago. The history of such laws would be readily available to counsel and the courts and could have been a matter that was dealt with in argument.”
The second case discussed in the show is a decision by Chief Justice Hinkson which struck down recent changes, made unilaterally by the British Columbia government, that prevented a plaintiff from presenting more than three expert witnesses as part of a motor vehicle accident claim case.
The purpose of the rule change was to save ICBC money.
While the provincial government does have authority to modify civil procedure rules, they are not permitted to do so in a way which would interfere with the core jurisdiction of a superior court.
The reason for this restriction on government authority is to protect the independence of the judiciary. This independence would be of little practical consequence if the government was able to modify procedures or move decision making authority to other, less independent, bodies.
A new BC Supreme Court policy concerning bans on publication, and closed courtrooms, permits automatic notification of applications for the media as well as a web site listing publication bans, to make it easier to determine if there is a publication ban is in place.
Judicial Recounts: what is required for an automatic, or discretionary, judicial recount, and how the recount proceeds when one is required. Issues on a recount include whether it’s possible to determine the intention of the voter and whether a ballot has been marked in a way that could identify the voter.
Extradition: the requirements, and threshold, for extradition are discussed in the context of a recent decision dealing with an extradition request by the United States in a securities fraud case. For a judge to order extradition they need only be satisfied that a properly instructed jury could convict, and not whether there is a defence, or if a conviction is likely. If a judge finds that this threshold has been met, the Minister of Justice then decides whether to actually extradite the person.
Finally, an appeal leaves open the question of whether an interlock device is an electronic device, for the purpose of a distracted driving conviction. A driver can be required to install an interlock device to ensure they are not impaired by alcohol. The device needs to be held, and blown into, before a car will start and then, periodically, while driving to ensure continued sobriety. The case demonstrates the need to clarify the distracted driving laws in British Columbia.
Follow this link for a show transcript and links to the cases discussed.
Legally Speaking with Michael Mulligan
Diplomatic Immunity – The wife of a US diplomat killed a British teenager in a car accident but was able to avoid prosecution and leave the UK as a result of diplomatic immunity. Topics discussed include the Vienna Convention on Diplomatic Relations and how this is implemented in Canada.
Other related issued include diplomats not having to pay parking tickets, how diplomats suspected of impaired driving are dealt with in Canada, and immunity from having to pay for parking in Victoria, BC for a list of people including vehicles bearing the flag or insignia of the Lieutenant Governor of British Columbia or the Senior Officer commanding the Canadian Armed Forces on Vancouver Island.
Interestingly, as section 71 (11) of the City of Victoria Streets and Traffic Bylaw is drafted, the immunity from having to pay for parking doesn’t seem to be restricted to the actual Lieutenant Governor of British Columbia or the Senior Officer commanding the Canadian Armed Forces on Vancouver Island, but rather appears to apply to any vehicle bearing one of their flags or insignias.
Also discussed is a recent agreement between the Government of BC, and the Association of Legal Aid Lawyers to modestly increase what legal aid lawyers are paid. The increase in pay is still much less than what the government pays lawyers doing prosecution, or other government work.
While the Government of BC will still be diverting more than half the funds raised every year from a special tax that was intended to fund legal aid, the recognition of the Association of Legal Aid Lawyers as a bargaining agent for lawyers doing this work may result in future improvements for a long underfunded system.
Legally Speaking is live on CFAX 1070 every Thursday at 10:30am.
Follow this link for a transcript of the show.
Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070.
A new Supreme Court of Canada case, Fleming v. Ontario, concluded that the police did not have the authority to arrest a protester who was carrying a Canadian flag and walking down the road, in order to avert a possible, future, disruption. The police officers and the province of Ontario claimed that the police were authorized to arrest the man pursuant to the ancillary powers doctrine to “arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace.” The Supreme Court disagreed and found that the arrest was not authorized by law. The wrongly arrested protester was awarded $139,711.90 plus court costs.
Also discussed, was a recent case from Thailand in which a judge acquitted five Muslim men of murder and said “You need clear and credible evidence to punish someone. So, if you’re not sure, don’t punish them. I’m not saying that the five defendants didn’t commit the crimes, they might have done so, but the judicial process needs to be transparent and credible… punishing the wrong people makes them scapegoats.” The judge posted a statement on Facebook indicating that he had been pressured to find the men guilty despite a lack of evidence.
The judge then recited a legal oath, pulled out a pistol and shot himself in the chest. He survived and was rushed to the hospital where he is recovering.
Finally, a BC Supreme Court decision dealing with short term vacation rental, and a bylaw prohibiting them is discussed. The Thompson-Nicola Regional District sought an injunction to prohibit two cabins from being rented for short time periods. The bylaw the regional district relied on was passed in 2012. The cabins had been rented, for short time periods, since 2008. The cabin owners claimed that the bylaws prior to 2012 permitted short term rentals.
If the earlier bylaw permitted short term rentals, because then rentals have been going on continuously, since 2008, this would have been a lawful nonconforming use pursuant to section 528 (1) of the Local Government Act. This doctrine applies as long as the non-conforming use was continuous, with no break for more than six months.
While the judge agreed that the short-term rentals have been continuous, since 2008, and would, therefore, have been a lawful nonconforming use, the bylaw in place in 2008 also didn’t permit short term rentals and, accordingly, that regional district obtained the injunction they were asking for.
Legally Speaking is live on CFAX 1070 Thursdays at 10:30 am.
A transcript of the show can be found here.
Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070
Issues discussed include overrides of federal prisoner security classifications which result in inmates classified as medium security, being transferred to minimum security institutions. This was an issue recently as a result of two inmates escaping from the William Head Institution, which is a minimum-security facility, despite having been classified as medium security risks. One of the inmates had been convicted of escaping jail on five previous occasions.
A 2001 report from Correctional Service Canada, that examined the reasons given for overriding inmate risk classifications is discussed. The report found that that was a 13.6% increase in escape rate when risk classifications were overridden and that in 30% of cases the reasons given for an override were inappropriate.
Also discussed was a British Columbia Supreme Court decision involving the College of Midwives of British Columbia, and a woman who described herself as a Death Midwife. The woman’s website described death midwifery as a form of pastoral care. The College argued that the Health Professions Act prohibited the woman from using the term “midwife”. The judge in the case found that the act did prohibit the use of the term, however, it unconstitutionally interfered with the woman’s freedom of expression because it was overly broad and did not minimally impair the woman’s freedom of expression.
Finally, the requirements for someone to be found not criminally responsible, as a result of a mental disorder, are discussed, along with the consequences of such a finding. In order to be not criminally responsible a judge would need to be persuaded that someone committed an act or omission while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act of omission or of knowing it was wrong.
Where someone is found to be not criminally responsible, they would be subject to detention, in a medical facility, until a review board concluded they did not pose a significant risk to public safety. In some cases, this could be for a much longer period of time then they would have served in jail.
Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070
Issues discussed include jury deliberations, sequestration, the fact that the substance of jury deliberations are secret in Canada, what information is included in a charge to the jury, information not provided to the jury, including the possible sentence if there is a conviction, and how judges deal with jury questions or cases where a jury is unable to arrive at a unanimous verdict.
Also discussed is a recent test case from the British Columbia Court of Appeal: Tanious v. The Empire Life Insurance Company. This case dealt with a successful claim for disability insurance benefits, and the circumstances in which special costs can be awarded. Special costs, as distinct from party and party costs, represent the actual legal costs incurred by a party to a claim. The Court of Appeal upheld the trial judge, who awarded special costs on the basis that it was in the interest of justice for the institutional defendant to indemnify the impoverished and disabled claimant fully for the reasonable costs of pursuing her claim.
Note: On October 3 and 10, Legally Speaking will be live on CFAX 1070 at 11:00am, rather than the regularly scheduled time of 10:30am.
The British Columbia Director of Civil Forfeiture ordered to return $2 million in cash that was seized as part of the largest money-laundering case in BC history, due to misconduct at an ex parte hearing. The decision can be found here and the reasons on the original ex parte hearing here.
"The Court must take the misconduct very seriously, because misleading statements in an ex parte hearing undermine the integrity of the process, and may even obliterate it. Misleading statements are of all the greater concern when they are made on behalf of a state actor carrying public authority and trust, whose actions have significant implications for individual rights and interests."
The Court of Appeal requires a new certificate be issued by the British Columbia Minister of Environment and Minister of Natural Gas for the Trans Mountain Pipeline, even though the province cannot prevent or impede construction or operation of the pipeline.
And one more example of why you shouldn't try to conduct your own trial without a lawyer, as the Court of Appeal denies an after the fact application to unseal the youth court record of a complainant.
CFAX 1070 60th Anniversary Special - retrospective on 60 years of CFAX 1070 in Victoria, BC and themes from past episodes including legal aid funding and the importance of meaningful explanations of legal issues and decisions.
Legally Speaking is live in CFAX 1070 every Thursday at 10:30.
Michael Mulligan is a lawyer at Mulligan Defence Lawyers in Victoria, BC, Canada.