127 episodes

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

Legally Speaking with Michael Mulligan Michael Mulligan

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

    Automatism, Horizontal stare decisis, and ICBC No Fault in the BCCA

    Automatism, Horizontal stare decisis, and ICBC No Fault in the BCCA

    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. 

    • 22 min
    History of abortion law in Canada, an acquittal for criminal contempt, and credibility in criminal cases

    History of abortion law in Canada, an acquittal for criminal contempt, and credibility in criminal cases

    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

    • 22 min
    Prolific offenders, Urban Mayors, causes and solutions

    Prolific offenders, Urban Mayors, causes and solutions

    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.

    • 23 min
    A no evidence motion, a 91-year old father unable to undo gift of a home, and child support after 19

    A no evidence motion, a 91-year old father unable to undo gift of a home, and child support after 19

    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. 

    • 21 min
    Home search after arrest, parking pass class action dismissed, and no mink ranching

    Home search after arrest, parking pass class action dismissed, and no mink ranching

    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. 

    • 22 min
    Crib case dismissed for delay, no judicial notice of unceded territory, and court COVID measures ending

    Crib case dismissed for delay, no judicial notice of unceded territory, and court COVID measures ending

    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

    • 23 min

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