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Legally Speaking with Michael Mulligan

Author: Michael Mulligan

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Legal news and issues with lawyer Michael Mulligan on CFAX 1070 in Victoria, British Columbia, Canada.
96 Episodes
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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.caA report with respect to civil jury trials has also been prepared. Also on the show, the BC Court of Appeal considers how much more money a man who failed to pay income taxes for more than a decade should need to pay before being discharged from bankruptcy. Declaring bankruptcy does not ensure that someone will be discharged either quickly, or without needing to pay back more money over many years. In the case discussed, after several years in bankruptcy, the man was ordered to pay an additional $45,000 over five years, at a rate of no less than $750 / month. Finally, a case involving a BC employment contract that provided for adjudication in Ontario is discussed. The clause would have made it more expensive and difficult for the BC employee to sue for wrongful dismissal. The employee in the case was fired with 30 days of notice, after working for more than a decade as a counsellor. The judge concluded that the clause was unenforceable for several reasons including that it was unconscionable, that there was no consideration provided when the clause was added to the contract, and because it didn’t say that Ontario jurisdiction was exclusive. Follow this link for a transcript of the show and links to the cases discussed. 
This week on Legally Speaking with Michael Mulligan:In British Columbia, the Wills, Estates and Succession Act sets out requirements for a will to be valid. These include a requirement that a will be signed by the will-maker as well as two or more witnesses. In a case discussed on the show, a 76-year-old woman was living in a care facility and provided instructions to her lawyer to draft a new will. Unfortunately, the appointment to sign the will was scheduled for March 20, 2020. The appointment was cancelled because the care home the woman was living at prohibited residents from leaving, or visitors from attending, because of COVID. Sadly, the woman passed away before the will was signed. She had no children, and her husband had predeceased her. In a previous will, from 2014, a large portion of the woman’s estate would have gone to the Kelowna General Hospital Foundation. In accordance with her instructions, the new will that was drafted, but not signed, did not include the Kelowna General Hospital Foundation but, instead, left most of the estate to the woman’s nephew and nice-in-law. According to the correspondence with her lawyer, the woman was clear that she did not wish to leave any money to the Kelowna General Hospital Foundation because she had no connection to the organization. She indicated that this had been a suggestion by her late husband. The Wills, Estates and Succession Act allows a court to “cure deficiencies” in a will that would otherwise be invalid. One of the things that a judge needs to be satisfied of in order to exercise this authority is that the will must represent fixed and final intentions regarding the disposal of property upon death. The Kelowna General Hospital Foundation argued that the unsigned will should not be relied upon because in a note to her lawyer, after reviewing the draft will the woman said, “no charities at this time.”Despite this, the judge hearing the case concluded that the unsigned will did represent the woman’s fixed and final intentions and found it to be valid even though it hadn’t been signed or witnessed. Also on the show, the University of Victoria is resisting a proposed class action seeking refunds of parking pass fees for the period of March 16, 2020, to August 31, 2020. After selling the parking passes, the university closed the campus because of COVID. The university was successful in an application to permit it to make an argument to have the claim dismissed, prior to a hearing to determine if the case should be certified as a class action. The practical implication of this is that the student acting as the proposed representative plaintiff could be ordered to pay thousands of dollars in costs if the university is successful. If a case is certified as a class action, the representative plaintiff is no longer at risk of being ordered to pay the costs of the defendant. Finally, on the show, an unsuccessful judicial review of a Human Rights Tribunal decision. The case involved an academic advisor who was fired from his job at UBC because he was using gay dating apps to meet people, including students, at the university. UBC took the position that this was a conflict of interest. The academic advisor argued that this was discrimination based on sexual orientation. The judge hearing the case found that while the evidence in the case could have supported inferences of discrimination, that this was not sufficient to overturn the decision of the Human Rights Tribunal. To reverse this kind of decision the judge would need to be satisfied that it was patently unreasonable. Follow this link for a transcript of the show and links to the cases discussed.  
This week on Legally Speaking with Michael Mulligan:An increasing number of jurisdictions, including New York, Quebec, France, and Israel are prohibiting people who are not vaccinated for COVID-19 from being in public places where people are in close contact, such as restaurants, bars, concerts, and museums.In Canada, the federal government has announced that it will be providing electronic vaccine passports to facilitate international travel, as well as provincial restrictions such as those being imposed in Quebec. In British Columbia, the Public Health Act provides authority to prohibit people who have not been vaccinated from engaging in activities or entering places such as restaurants. These provisions are found in section 16 of the Public Health Act. Other possible restrictions would include not permitting unvaccinated people from attending in-person classes at universities or residing in university student housing. The University of Ottawa has made COVID-19 vaccination mandatory for students, staff, and faculty.Section 15 of the Public Health Act is also discussed on the show. This section makes it an offence for anyone to “willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard.” Also on the show: pepper spray is a prohibited weapon in Canada. This means that simply possessing pepper spray can result in a criminal conviction, even if it’s not used. Because the theoretical maximum penalty for possession of a prohibited weapon is 10 years in jail, someone who is not a Canadian citizen could end up being deported, without a hearing, if convicted of this offence. The regulation that makes pepper spray a prohibited weapon described what is prohibited in this way:1.   Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of (a)  tear gas, Mace or other gas; or(b)  any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.The BC Court of Appeal has considered this section and concluded that even though something like Mace, which is designed for self-defence, is prohibited, bear repellant, which may be the same substance in a larger bottle, would not be prohibited because it’s not “designed” to injure or immobilize a person. Even though bear spray may not be a prohibited weapon, it could still be a weapon and therefore constitute an offence if someone were to carry it in a concealed manner, or for a dangerous purpose. A sentencing decision involving pepper spray is also discussed on the show. It involved an altercation between an 86-year-old and a 57-year-old man shopping at Costco in Vancouver. Following an alleged elbow bump in a doorway, the 86-year-old man pepper-sprayed the 57-year-old man. Despite having pepper spray in his eyes, the 57-year-old ran after the 86-year-old and pushed him with both hands from behind. The 86-year-old man fell, hit his head, and died. The 57-year-old was convicted by a jury of manslaughter and sentenced to 18 months in jail.This case may have formed part of the basis for the federal government’s rejection of Alberta’s recent request to legalize pepper spray for self-defence. Follow this link for a transcript of the show and links to the cases discussed.   
This week on Legally Speaking with Michael Mulligan:The former Clerk of the BC Legislative Assembly, Craig James, was successful in having one of the charges he was facing dismissed. Mr. James was charged on a six-count direct indictment. To be charged by direct indictment, either the Attorney General or Deputy Attorney General need to provide their consent. When this happens, an accused person no longer has the right to elect what kind of trial they wish to have and there can no longer be a preliminary inquiry to determine if there is enough evidence to proceed to trial. Five of the charges on the direct indictment alleged specific wrongdoing, such as obtaining a benefit from the purchase and use of a trailer and wood splitter paid for with public funds.  The first charge, on the direct indictment, alleged that between September 10, 2011, and November 21, 2018, he did “commit breach of trust in connection with the duties of his office by using his position to advance his own personal interests of the public good, contrary to section 122 of the Criminal Code.”The trial judge agreed that there were several challenges created by this charge.The charge duplicated the other five charges, without adding anything new. It would have made the trial more complex for the jury and ran afoul of a principle that a charge should generally relate to a single transaction. As a result, the trial judge exercised her authority to quash the count and manage the trial in a way that would be fair to Mr. James. Also on the show, the BC Court of Appeal has concluded that the Motor Vehicle Act provisions that make it an offence to “hold” an electronic device while driving are not restricted to holding a device in your hands. The driver in question had a phone wedged between his leg and the seat.The Court of Appeal concluded that the ordinary grammatical meaning of the word “hold” and found that it can include “physically grasping, carrying, or supporting an electronic device with any part of one’s body in a position in which the device may be used.”Finally, on the show, a judge has approved a settlement of a class action against Cathay Pacific Airways Limited as a result of a 2018 data breach that affected 9.4 million passengers worldwide.Approximately 230,000 passengers were covered by the BC class action. As a result of the data breach, names, passport numbers, credit card numbers, and other sensitive data were exposed online. When there is a proposed settlement of a class action a judge needs to determine if the settlement would be in the interest of the class members. The judge is also required to approve legal fees and an honorarium for the person who served as the representative plaintiff and needed to spend time assisting with the case. In the case discussed, a settlement of $1.55 million was approved and the representative plaintiff was provided with an additional $1,500 honorarium.Follow this link for a transcript of the show and links to the cases discussed.     
This week on Legally Speaking with Michael Mulligan:The City of New Westminster cancelled a meeting room rental that had been booked by The Redeemed Church of God for a "Youth Conference". The City of New Westminster has a booking policy that “restricts or prohibits user groups if they promote racism, hate, violence, censorship, crime or unethical pursuits.”Following an email complaint that the Youth Conference would be an anti-LGBTQ event, the City of New Westminster made some online inquiries and determined that a speaker at the event had a large profile on social media and recent Facebook postings expressing anti-LGBTQ views. As a result, The City of New Westminster cancelled the room rental. The Redeemed Church of God complained about the cancellation and ultimately filed a petition in the BC Supreme Court to, amongst other things, ask that the cancellation be judicially reviewed and reversed. The request for judicial review was denied on the basis that the room rental was a contractual arrangement and not subject to judicial review. The judge hearing the case did, however, find that the City of New Westminster had breached The Redeemed Church of God’s right to freedom of expression because the city didn’t take sufficient steps to inform itself about the anticipated content of the Youth Conference to permit a balancing of competing rights to be conducted before making the decision to cancel the room booking. Also on the show, a decision from the BC Court of Appeal will allow a defamation claim against a former employee of a Vancouver cryptocurrency company to proceed to trial. The former employee had previously been successful in having the case dismissed pursuant to the Protection of Public Participation Act. This act, which was introduced in 2019, is intended to prevent unmeritorious civil claims from being used to prevent public criticism. The Court of Appeal concluded that the judge who dismissed the claim made a mistake in dismissing the claim because, if defamation is proven, damages are presumed to have occurred.Finally, another Court of Appeal decision dealing with a sentence appeal by a Métis woman who was sentenced to nine months in jail for an assault causing bodily harm conviction is discussed.The appeal was premised in part on an argument that the sentencing judge had failed to give adequate consideration to the woman’s background, which is expressly required by section 718.2 (e) of the Criminal Code. That section requires that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”In this case, the Court of Appeal concluded that that judge was not required to do more than they had, given the absence of information concerning the impact the woman’s Métis heritage had on her difficult background. Follow this link for a transcript of the show and links to the cases discussed. 
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.
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