Legally Speaking with Michael Mulligan Michael Mulligan

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.