Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Suing a Judge changing a charge and being "functus officio"
Can you really sue a judge if you're wrongfully convicted? This episode unpacks the intriguing case of a man who attempted to do just that after his conviction was overturned. We dive into the legal constraints surrounding this scenario and examine Lord Denning's view that judges should be able to make decisions without fear of personal liability. Join our analysis of the limits of a judge's editing power on a court-ordered transcript and the accusations levelled against the judge at the second trial.
Switching gears, we explore intoxication's role in criminal law and the complexities of specific and general intent offences. Through the lens of a case involving a man charged with breaking and entering, we discuss the implications of changing the charge after the accused has testified and the fairness of such an approach.
We also tackle the idea of a decision being 'final' and how it can be revisited, delving into a case involving immediate roadside driving prohibition.
Don't miss this captivating exploration of justice, liability, and the intricacies of criminal law.
Follow this link for a transcript of the episode and links to the cases discussed.
time for legally speaking with Michael Mulligan, barrister and solicitor, with Mulligan defence lawyers. Morning Michael, how we doing.
Michael Mulligan:Good morning, i'm doing great. I was good to be here, good to hear your voice back as well.
Adam Stirling:Oh, you have no idea how frustrating it is for me not to be able to speak. It really was a test of my restraint, just staying home as long as I did Some really interesting cases on the docket. Today I'm reading number one Can you successfully sue a judge if you are improperly convicted?
Michael Mulligan:That's a really good question. So the case that was just released by the BC Supreme Court dealt with that issue in an interesting fact pattern. The background of the case was that the man involved was convicted of improperly touching for sexual purpose a young girl whom he was tickling at a family cabin. That was the fact pattern. There were no other witnesses to it. He was convicted. His conviction was then overturned on appeal. He was sent back at another trial where he was convicted by another judge, the decision of which was appealed successfully, and the man, following that the crown, didn't proceed any further with the charges. They stayed, the prosecution discontinued it, and that led to the man suing a number of people, including the judge at the second trial. And, as one might expect, there are some significant limitations on when that you would be able to successfully sue a judge for a decision they've made. Now sometimes people ask can I sue somebody for something, and the answer to that is usually well, yes, you can. The better question would be can you successfully sue somebody?
Adam Stirling:for something. Yes.
Michael Mulligan:And so the Supreme Court judge was hearing his application about whether the claim against the judge should be dismissed, and the judge, hearing that application, went all the way back to a decision by Lord Denning which says this judges should each be able to do his work in complete independence and free from fear. He should not have to turn the pages of his books with trembling fingers asking himself if I do this, shall I be liable and damages right, when there are the cases on that. And so the idea there is there should be independence. Judges should be able to make decisions without worrying about oh my God, am I going to be sued and lose my house over this decision? Now that brings us to what was the judge alleged to have done wrong here? And the man head On the second judge. The man had two complaints. One complaint was that the judge had reversed the burden of proof. Like he alleged that the judge had put the burden on him to prove his innocence rather than the crown having to prove his guilt. And the man pointed to the fact that in the judge's decision the judge said well, look, the man testified and said that he didn't do this, but there wasn't other evidence to support the man saying he didn't do it, or I reject what the man had to say, and he said well, hold on, that's kind of putting it on me to prove that I didn't do it, which is the opposite of what should happen. Now, that was one of his arguments.
Michael Mulligan:The other argument is an even more interesting one. The other argument involved to what extent is a judge allowed to edit their reasons, because some judge, some judgments of judge's issues are issue are in writing. They type out the reasons and just issue them in writing. So that's that In other cases judges issues their decisions and reasons for their decisions orally. They come into court and read them. Then if there is a transcript ordered, there's a, i should say, in court. Now everything said in court is audio recorded. It used to be years ago that we had court reporters who would sit there and they would take notes on a machine at shorthand and then type up a transcript of one was ordered or read back to shorthand. But now everything is recorded And this will be a surprise to many people.
Michael Mulligan:But when you order a transcript of what was said in court, including the reasons that a judge gave, which can be very important because that's what would be looked at to determine should there be a successful appeal. How did the judge reach their decision? Did they make a mistake? Did they apply the wrong law? Did they get the evidence wrong? It's pretty important.
Michael Mulligan:The trial judge has the ability to edit the written transcript before it's provided to anyone. Wow, and there's difference of opinion in different provinces. How much editing can they do? in Ontario, for example, the court of appeal there is more restrictive than in British Columbia. The court of appeal there has said look, a judge could edit for punctuation, grammatically errors, but nothing more than that. In BC there's been some additional flexibility, including judges allowed to edit things where they say that the words were misspoken or to add a clarification. And so when you order a transcript, you don't just get what was actually said in court, you get a version of what was said in court, potentially changed by the judge. And so the manner of good will hold on.
Michael Mulligan:This judge, he argued, made substantive changes to what the judge said in their reasons for convicting him. And so he said well, that's not appropriate, right? Because if the judge said this is why I rejected your evidence, and then changes that, well, what are you really assessing, right? Surely we should be assessing what the judge did at the time, not what, upon reflection, the judge concludes maybe they should have done. And so that was the fact pattern upon which the man was suing the judge. And the man's argument was well, this judge wasn't acting in a judicial capacity, they were acting in a personal capacity. Very interesting Now the I should say the second appeal from the second conviction was allowed by the BC Court of Appeal.
Michael Mulligan:But they found that it should be.
Michael Mulligan:Appeal should be allowed on the basis that the judge reversed the burden of proof and improperly put a burden on the man to prove his innocence. And when the judge said I don't accept his denial because he didn't have other evidence to support his denial, that was wrong And it was. I should say that's not how that should be approached. And so the court of appeal said well, we don't need to deal with the degree to which the judge edited their reasons, because even on the edited version it was not proper. So that brings us to the case against the judge. And the man was saying well, this isn't a circumstance where the you know this is sort of a judge should get uh, uh, immunity from being sued on the basis that there should be independent decision-making. That man argued no, no, this is a judge acting in some personal capacity, because a judge doesn't have immunity for everything. Right? Like if the judge I don't know, got angry and through the through their water bottle at somebody and hit them. Well, that's not a judicial function, right? And they?
Adam Stirling:can't take that out of the record either.
Michael Mulligan:No, that's right, Edit that out. Don't let him delete the ouch You're under. You've hit me with a water bottle. Um, so it's not as if judges have general immunity for anything they do in life or indeed anything they do in the courtroom, right, there could be some odd scenario where a judge does something in a courtroom that's not part of their judicial function, like if they threw something at somebody or punched them or something. They're not immune from being sued or prosecuted for anything. It's just, is that in part of their judicial function?
Michael Mulligan:And on this fact that are, the Supreme Court judge found that no, indeed, this was a circumstance where what the judge did, the decision and the editing, indeed all of that was within the scope of sort of a judicial function And, as a result, it's that important principle of broad immunity would apply. And I should say there are other forms of immunity in court as well that are important, that allow for that same sort of independence. Things like, um, you have absolute immunity for things that, for example, submissions, counsel might make it a trial. Well, otherwise, for example, if I were to stand up in court and say, look, your honor, my submission, that witness was lying right, or that witness, you know my submission, uh, committed the offense or something right.
Adam Stirling:Yeah.
Michael Mulligan:Without immunity there, you could be sued for that right If you sort of went out and generally made some allegations saying, hey, that person has committed a crime or they're a liar, that that could be something that could be actionable. But there's immunity provided in court And without it, nobody could do anything right Counsel wouldn't, couldn't make submissions, people couldn't testify about things and judges couldn't make decisions. And so there is broad uh immunity from being sued over judicial decisions. And in fact, in this case, despite that interesting fact pattern, uh, the Supreme Court judge found that uh, the claim could not proceed. Uh, and so, uh, even though the man's second conviction was overturned, as have been a conviction that was entered improperly because of the reverse burden of proof that doesn't allow him to sue the judge or damages Uh and so the judge, uh, while they made a mistake, uh doesn't have to uh also be concerned about having, as Lord Denning said, trembling fingers when they're making a decision, which is a good thing Uh, but that's the outcome of this case.
Michael Mulligan:And so that's uh, two interesting things the judicial immunity and the power of judges to actually edit transcripts. So when you're seeing the decision of a judge, it may or may not be what they actually said in court And if you were concerned about it, there is a way to figure that out. Uh, because you could actually, in some circumstances, go and get the audio recording and compare what did the audio say versus what did the written transcripts say, and in some cases that might be significant, right? Uh, as you say. As for a counsel, you often are making careful notes of what the judge is actually saying in their decision, and if there was a transcript that didn't reflect what was being said, there could be an issue about whether that was appropriate and there would be a way, ultimately, to get to the bottom of it. So judges edit in transcripts.
Adam Stirling:All right, let's take a break. We're back right after this, legally speaking, continues here at CFAX 1070 with Michael Mulgen from Mulgen Defense Lawyers. Can a criminal charge be amended after an accused person is testified at their trial? The scenarios get more and more complex, michael.
Michael Mulligan:How do we come up with these things?
Michael Mulligan:I must say the um. So there's a. In a criminal case you would always have a thing called an information which would show what is a person charged with. Right. So if you looked at it you could see okay, you know, joe Blow is charged with assaulting Mary on this day in this place. Okay, now we know we're all here about right And that's important.
Michael Mulligan:So people can sort of focus on what a criminal case is about. Right, We don't put people on trial for being a bad person or doing something wrong at some point somewhere. Right, we put people on trial for a specific thing, but In what circumstance can that be changed? There is authority to change what somebody is charged with, even after a trial is commenced and indeed in this case, even after an accused person is testified. So you could imagine all the changes that might occur. So this particular case was involved an allegation that a man went into the tent of a woman at a campground and assaulted her in the tent. Right, and the man, amongst a couple of other charges, was charged with initially breaking and entering with the intent to commit an indictable offense. Okay, and the reason that was potentially significant in this case is that there are in Canada, we've developed this concept of general versus specific intent offenses, and the reason those things are different it turns on the mental element required to be convicted. Right, criminal law is concerned generally with people knowingly doing something wrong. Right, we don't convict people criminally for, i don't know, tripping on the sidewalk and landing on someone. Right, we can get people for assaulting people intentionally doing something.
Michael Mulligan:Now, that distinction between a specific and general intent offense is significant because of the role that intoxication can play, which, unhappily, is not an uncommon element in the criminal law, and the idea is that for a specific intent offense, a person, intoxication can be relevant to whether the person could have formed the sort of mental state of doing something wrong in order to be convicted. And so, for example, the thing this man was charged with breaking and entering with the intent to commit an indictable offense would require proof that the person could form that intention to break into, in this case the tent to do something wrong. Right, and there was evidence when this man testified that he'd been drinking for a long period of time And the crown, i think, was concerned that they may or may not be successful in proving that the man was able to form the intent to commit an indictable offense when he broke into the tent, potentially because there was evidence about being very, very drunk. Right Now there are other types of offenses that are general intent offenses, where being very drunk when you get yourself drunk isn't a defense, and that would include something like committing an assault. And so what happened is the man testified about getting drunk and then going into the tent.
Michael Mulligan:After he testified about that, the crown applied to amend the charge from breaking and entering with the intent to commit an indictable offense to breaking and entering and committing an assault, and by that change, because an assault is a general intent offense, it no longer mattered at all whether the man got himself very drunk and whether he was able to form any plan to do anything wrong when going into the tent. And so the issue on the appeal became well, was that appropriate? Was it appropriate and permissible to change the charge the man was facing after he had testified? And the man argued on the appeal, or his lawyer argued on the appeal that the man may not have chosen to testify at all had he been charged with breaking and entering and committing an assault, as opposed to breaking and entering with the intent to commit an indictable offense. And so the issue for the court of appeal was was that appropriate when the judge permitted the charge to be changed after the man had testified? The core of that is whether the change was prejudicial to the man and his defense.
Michael Mulligan:And on this fact pattern, even though the change to the charge was significant and happened very late in the day, like after the guy had chosen to testify, the Court of Appeal found that the case was overwhelmingly strong against the man and that, practically speaking, if he hadn't testified he just would have been convicted. And there wasn't much other evidence that he was extremely intoxicated, such that, in the Court of Appeals view, even though this was very late in the day, change with what the man was charged with. They found that it hadn't been prejudicial to him, and the Court found that there wasn't sufficient evidence that he would have done something different had he known that he was going to be charged with assault or breaking an entry and committing an assault, as opposed to breaking an entry with the intent to commit some indigable offense. And so here, at least on this fact pattern, the answer is yes.
Michael Mulligan:What you're charged with can change after the trial started and even after the person has chosen to testify, believing that they were charged with something else. And so that's an interesting thing people should think about, because generally that idea that, hey, you should tell somebody what the charge they're facing so that they can conduct themselves accordingly, i think most people would think, well, that's kind of a basic element of fairness. Right, you wouldn't want to, you know, get up and try to defend yourself against one charge and then find out, aha, we actually weren't interested in trying to convict you of something else. Oftentimes that would be the sort of very definition of what is prejudicial to somebody, because a person needs to be able to decide hey, am I going to testify, what am I facing here, what am I talking about? And choosing to change that later would often be prejudicial. But on this particular fact pattern, it's permitted, it was permitted, and so the answer is yes, your charge could be amended even after you've chosen to testify at your trial.
Adam Stirling:Wrong numbers, excuse me. Misfiled documents and an impaired driving appeal.
Michael Mulligan:Yes, So this is another interesting issue involving how decisions are made, And it involved a circumstance where a person was charged with or not charged, I should say. Most impaired driving cases are now dealt with as administrative matters, where there isn't a criminal charge at all. They're dealt with by way of these things that are called 90-day immediate roadside driving prohibitions. The government went to those because they are cheaper and faster than charging somebody criminally, And so that's what happens in most impaired driving cases. They no longer prosecute them criminally at all. One of the requirements under this administrative scheme is that when somebody is given one of these driving prohibitions, the police officer who gives it to them is required to file some paperwork in support of it. They need to file a report and some other certificates and so on in case there is an appeal of the driving prohibition, And there's a requirement that all of that be served within seven days of when the person is stopped so there can be a timely appeal. In this case, what happened is the police officer gave somebody one of these 90-day driving prohibitions. The person appealed. The officer did send in their paperwork, but the registry where they sent it into misread the numbers, And so they put the paperwork in the wrong file effectively. And then what happened is the person who was charged with doing the adjudication which I should pause, I'll get back to that in a moment looked at the file for the appeal and said well, the officer hasn't provided any evidence. The lawyer for the person had filed material and because there was nothing in the correct file, the adjudicator which amusingly in the decision is referred to as adjudicator dolphin and I should say that's because these adjudicators use fake names They're concerned about people taking it out on them if they make unpopular decisions And so they use fake names. So, amusingly, all throughout this thing is adjudicator dolphin, And I imagine the person is not a dolphin and they're not called Mr and Mr and Ms Dolphin. So the dolphin said well, okay, this appeal is canceled because the police officer hasn't provided any evidence. Then somebody unknown at the motor vehicle branch, I guess found the miss filed material from the police officer And then the that a different adjudicator not the dolphin issued a decision saying no, no, we're going ahead And we're going to confirm the driving prohibition after an adjournment. And so that's what went off. On a read, the one said well, that permitted.
Michael Mulligan:And one of the concepts that arose. There is this concept of was the first, was the? was the or worthy adjudicators funk this, And what that means basically in a legal term is like finished their legal authority to do anything. And, for example, like in a criminal case, let's say a person has a trial and the judge hears the evidence, missions and evidence, they come in and say you know, Mr So and so I find you not guilty. Thank you very much. Court adjourned. That judge couldn't come back next week and say by the way, I thought about it, some more guilty, Right. The idea would be you're done, You've kind of made your decision. It's over. You don't get to sort of come back and try again or change your mind. And so one of the arguments was well, look, the dolphin made the decision, The you know goldfish. Whoever can't come along later and decide that they want to do something different, you guys are all finished. If you don't like the decision of the dolphin, you better go and appeal that or something because you're done. You're fun.
Michael Mulligan:The judge hearing this appeal from the decision of the second person, who I don't think was actually goldfish, but it could have been found that indeed that wasn't.
Michael Mulligan:This wasn't done properly.
Michael Mulligan:It may well be that the dolphin made the final decision, but they should allow the motor vehicle immediate roadside driving prohibition people, be it dolphin or somebody else, to explain why it is they think they still had authority to do anything And so they sent it back saying, well, if you want an opportunity to do that, you may do so, But pointed out that the person who was stopped has already served the vast bulk of their driving prohibition, And so they should think carefully about whether it makes any sense to have the dolphin give reasons for what they did, or the goldfish person or whoever they were, And so we'll see what happens in that individual case.
Michael Mulligan:But as an interesting example of that concept of being funk, this when a decision is finalized and whether you can go back and do something different, and also, I think, important for people to know the names used by these people are fake, which does have some potential implications because, of course, for all you know, the adjudicator dolphin might be that next door neighbor that hates you or your you know vindictive ex-husband. You would never know. But there it is. The decision of the dolphin has been reviewed.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking. Thanks so much. Have a great day.