Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
The History of Vagrancy Laws, Applications to Become a Judge Drop, and the Duty to Defend
For most of Canada's history, vagrancy was a criminal offence.
While the wording of the vagrancy laws changed from time to time. As of 1972, there were two different forms of vagrancy.
The first form of vagrancy made it a criminal offence to beg or be found in a public place without apparent means of support.
The second form of vagrancy prohibited people convicted of sexual offences from loitering near parks, playgrounds, school yards or public parks.
The case that ultimately determined the second type of vagrancy was unconstitutional arose from Beacon Hill Park in Victoria. It involved a man previously convicted of sexual offences involving children being found twice near a playground in the park. The man had a camera with a telephoto lens. When he was arrested for vagrancy, the camera was seized. When the film was developed, it included pictures focusing on the "crotch area of young girls playing in the park with their clothing in disarray."
A five-four majority of the Supreme Court of Canada found the second form of vagrancy unconstitutional because it was overly broad.
Vagrancy was subsequently removed from the Criminal Code.
Also on the show: a report from the Judicial Council of BC indicated a dwindling number of applications for jobs as a Provincial Court Judge in British Columbia.
From an average of 37 applications per year, in 2022, only 23 people applied.
Why are potential candidates shying away? Is it because of the less than satisfactory remuneration? For over a decade, the BC provincial government has repeatedly overruled decisions of an independent commission that is supposed to set the salaries for judges.
We draw parallels between the earnings of these judges and those of family doctors and other government officials.
Also on the show is an exploration of the duty-to-defend clause in insurance contracts.
Follow this link for a transcript of the show and links to the cases discussed.
time for legally speaking with barrister and solicitor, with mulligan defense lawyers, michael mulligan joining us as always. Morning, michael, how we doing. Hey, good morning, i'm doing great. Oh, it's good to be here.
Micheal Mulligan:Interesting stories on the agenda today, including a little bit of a history lesson into the legal status of vagrancy in canada yes, indeed, and i should say just before i start that, uh, listening to the discussion about, uh, $1,200 government air conditioners, i feel compelled to point out that if you conclude your life is in danger by not having an air conditioner, home depot will deliver one to you tomorrow for $162, and i, i dares say, if you don't have $162, i'm not sure how you're going to pay for the electricity, for the $1,250 government air condition or whenever that shows up sometime in the winter. So don't be sweating.
Adam Stirling:I i think there's some misinformation there.
Micheal Mulligan:I don't know how they've got that number, but i am going to look into it so vagrancy, that's an interesting topic and, i think, a topical topic for anyone who lives in any city or town in in british clumbia these days. Right you, if you drive down pandora avenue, you may be wondering to yourself what's going on here, and there's a long history of how sort of public camping and people living on the street and intents and so on has been dealt with and it has not always been as it is now, which seems to be a decision that that's an acceptable state of affairs right to have people living outside in tents on the street and the. The long legal history of that in canada actually has some interesting parts that directly relate to victoria, one of the key supreme court of canada. Cases that dealt with a. One of the incarnations of the laws against vagrancy arose out of beacon hill park here in victoria and the origin of this is from the time of confederation, the original criminal code provisions. In canada it has been traditionally a crime to be somebody who is sort of living idle on the street and the original version of that involved making it an offense for somebody to be loose, idle or disorderly person or a vagrant and some of the cases that dealt with that specified those are the various ways in which that occur could occur, and they often involved because the legislation changed from time to time sort of an idea of somebody being found out and about with no visible means of support and sort of not accounting for themselves when asked, and that state of the law. Law was some piece of ancient history. That was the case up until relatively recently.
Micheal Mulligan:By 1972, we had a version of vagrancy in the criminal code that made it a criminal offense. You could commit vagrancy in one of a couple of possible ways, but one of the ways you could commit it was if you were found without any visible means of support, wandering about or trespassing and when asked, you're not able to justify your presence in the place where you're found. It also, interestingly, part of the history of this was not only dealing with people who were sort of not working in idle, living on the street, but it was also closely tied up with laws concerning prostitution and, in addition to making it a criminal offense, which was originally punishable by a fine of up to $50 or imprisonment for up to six months, with or without hard labor, they also had used this section to make it an offense for somebody who was a quote common prostitute or night walker close quote who was found in a public place and does not, when required, give a good account of herself. So that's part of the version of the law that existed in 1972, but this isn't something which ended in the 70s.
Micheal Mulligan:Between 2003 and 2019, the criminal code contained a vagrancy provision it was section 179 and the vagrancy provision that existed for that period of time had two possible ways in which somebody could commit vagrancy. There was what was section a and section b, and they were sort of, in short, referred to as vague a or vague b, and vagrancy sub. A, which was brought in in 2003, made it a crime for somebody who supports himself in whole or in part by gaming or crime and has no lawful profession or calling by which to maintain himself. That was a crime And you could be arrested and charged with vagrancy if that was you, or B the other way. Vag B, in which somebody could commit vagrancy, address people who are previously convicted of a list of sexual offenses, and then if those, if somebody previously convicted of this list of sexual offenses was found loitering in various places, including a near a school ground, playground, public park or bathing area, they could be charged with vag B And the seminal case dealing with that.
Micheal Mulligan:That second way in which somebody could commit vagrancy came out of Victoria and Beacon Hill Park, and it was a case that eventually went to the Supreme Court of Canada in 1994. And it was a case called Regina versus Haywood, and the fact pattern of that case involved a man who was previously convicted of sexually assaulting sexual assault involving children And so he was subject to that second possible way in which somebody could commit vagrancy if they're found loitering near playgrounds, parks and so forth. And that man was found in Beacon Hill Park on two occasions carrying a camera with a telephoto lens, near where children were playing. He was stopped by the police in question about whether he had a criminal record, and on the first occasion he was warned that convicted sex offenders were not permitted to loiter near a park, schoolyard or playground. On the second occasion he was arrested and charged with that form of vagrancy. His telephoto camera was seized And the film was developed back in the days of film, and the film was found to contain images that he had taken of quote, the crotch area of young girls playing in the park with their clothing in disarray. That's what he was charged with.
Micheal Mulligan:So vague B That and then that was challenged on constitutional grounds in terms of whether that form of vagrancy vague B which would apply to previously convicted sexual offenders did interfere with his life, liberty or security of the person. And the legal debate that ensued involved an assessment of whether that those provisions were either overbroad or unconstitutionally vague. And the arguments included the fact that there was no provision to appeal that kind of a finding right. If you were somebody convicted of this list of sexual offenses, that's it No loitering around parks and playgrounds for you And ultimately that the man from Beacon Hill Park was convicted in provincial court. It was appealed to the BC Supreme Court where the conviction was upheld, but that was overturned by the BC Court of Appeal And then eventually in 1994, that case Haywood made this way all the way to the Supreme Court of Canada who had to wrestle with the legal issue of whether that second form of vagrancy, which would apply to sexual offenders, loitering in parks and playgrounds and so forth, was constitutionally valid. And the Supreme Court of Canada split And it was a 5-4 decision And the outcome of that was that it was found to be unconstitutional And so, as a result, that second form of vagrancy, dealing with parks and playgrounds and schools and so on, was struck down That the legislation nonetheless sort of remained printed in the criminal code until just a couple of years ago when there was a bill passed to remove from the criminal code a whole series of offenses which had been found by courts to be unconstitutional Because they were sort of maybe landmines and the criminal code even a notorious case from a few years ago where a judge convicted somebody based on a section that was clearly unconstitutional.
Micheal Mulligan:So there was kind of a cleanup of a number of sections in the criminal code, including various things like spreading false news, loitering, the sub B version of vagrancy, anal intercourse on lawful object, murder, various other abortion that was really wasn't a criminal code but found to be unconstitutional. And there was a uh on the most bill passed, which, uh? it was bill C 39 a few years ago which removed those things from the criminal code. So if you now open up the criminal code and look, you'll no longer find um, like the offense of abortion or the offense of vagrancy, either sub A or sub B. Uh and uh.
Micheal Mulligan:I suppose there's some clarity in that. Um. Sorry, some people might not be misled because it would still sit there even though a court has found it to be unconstitutional, uh, and so that background, i think, is important for people to know when you're sort of assessing where we've come, because we've come, whether a good, bad or indifferent, whatever your view of it, uh, there's been a tremendous change in terms of how the law addresses those issues, um, and when you read cases of I did in preparing for this, including uh, sort of an appeal case from 1949, you see how, uh, you know, not that long ago, uh, it was approached if you had a person who was sort of uh wandering about, uh, with no job, um and like in that case, there was a man who was arrested in Vancouver, um, who police had seen they'd seen him on various occasions, kind of walking one way or the other and he's tasting street and was eventually arrested having a cup of coffee, uh, and was asked to account for himself under the vagrancy provisions, and the man's response was to the effect that he was tired of being bothered by the police, he was not working, uh, had not been working for some time, it had no intention of seeking employment, um, and he was asked to be any money and he had one penny with him, uh, and so he was arrested in charge with vagrancy convicted, and the conviction was upheld by the court of appeal. And so we've come from a state of affairs where, if you sort of wander around aimlessly, even if you're currently found having a cup of coffee, if you don't have a job, and you're not getting a job and you're not accounting for yourself and all you've got is a penny, uh, you're going to be convicted and potentially sentenced to prison.
Micheal Mulligan:Uh, to a state of affairs not that many years later, right, um, where uh, it's now seems to be sort of a lifestyle choice, right, if people say I don't uh want to go into some form of shelter and housing, i'm just going to sort of be on the street and I'm going to use drugs. There's no expectation that people have a job, work, look for a job or do anything else. Uh, and so there's been just a real change from as recently as the 1970s where those things would have been criminal. You can't do that to a state of affairs where it's viewed as um sort of uh impermissible for there to be anything done if somebody is uh chose, choosing that lifestyle, and so we should reflect upon that again, it's not a judgment call and whether where we've currently gotten is a good or bad uh, but people should know that the current state of affairs has not always been the state of affairs and not very long ago there was a very different social reaction, um, which was reflected in the law Uh, if you had somebody who's response when asked by the police well, they don't have a job and I don't plan to get one.
Micheal Mulligan:Uh, right, that was your under arrest, uh and uh. Now, um, there's none of that. So quite a change. But between 1972, uh and uh and today, and we see that reflected uh by anyone who walks or drives or cycles uh through downtown Victoria and indeed, uh many cities all over the province.
Adam Stirling:Michael Mulligan with Mulligan defense lawyers, legally speaking, here on C fax 10 70. We'll be continuing right after this commercial break, back on the air here at C fax 10 70, legally speaking, with Michael Mulligan, barrister and solicitor, with Mulligan defense lawyers. as we wrapped up the legal history of vagrancy, michael, was there anything else we wanted to touch upon before we move on to the next matter?
Micheal Mulligan:I think that's all I have to say on vagrancy. Just uh, bear it in mind and reflect upon the fact that the current state of affairs has not been the state of affairs for very long And just that issue has been dealt with a very different way from a legal perspective. uh, until quite recently.
Adam Stirling:You and I have discussed in the past the judicial council and the body that oversees and governs the judiciary here in Canada. I'm reading something here about an annual report.
Micheal Mulligan:Yeah, this is an interesting report. This one just came out to. The particular report that just came out uh was the British Columbia judicial council. So this is the one, uh that deals with provincial court judges and judicial justice is in British Columbia. Uh, and one of the functions that that judicial council performs uh is uh sort of a vetting process, uh, to uh hire people as provincial court judges. Um, and we have had for some time in BC at least from my perspective uh, a shortage of provincial court uh judges, and the reason for that is almost certainly cost, right, because when the government hires a judge, they also then have to have courtrooms and court clerks and sheriffs and all the things that flow from it. Right, and when you don't have a sufficient number of judges, one of the ways that manifests itself is the long delays that we can see in the court process, waiting for cases to get to trial, and that's something that I would see in my practice routinely. Um, so I was having a look at this report that just got released Uh, and there were some interesting insights in that, but I think we're worth uh drawing people's attention to Um.
Micheal Mulligan:One of the things which was really remarkable when you go through the report is the stark decrease in the number of people that are prepared to? uh apply to become a provincial court judge. Now, that number has fallen, uh, quite precipitously. Uh, the 10-year average of people that were applying for those jobs was 37, and that dropped in uh last year to 23,. Uh, which caused me think, well, what's going on here? Why is that so? Um, and No doubt there are various things that would play into that, into that, but one of them, no doubt, is a related issue that we've talked about from time to time, which is the how pay is set for provincial court judges, right, yes, there's an independent commission which would determine what their pay should be by comparing it to the pay of senior lawyers and what judges are paid in other provinces, and things like that.
Micheal Mulligan:And every time that commission has come out with a recommendation for at least the last decade or more, the government has just overruled it and reduced what they are to be paid, right, and I should say that what they're paid is not a trivial amount. They're not paid poorly, right? The figure, if people should know, is $288,500, right, that's not a small sum of money, right, but it has to be put in some context, because the people that are being asked to apply for those jobs are generally senior lawyers, right? Yes, the average was 22 or 23 years of experience, and for many very senior lawyers of the sort you'd want doing that job, that's going to be less than what they would make if they just carried on in private practice, right? So people that are applying for it are doing it, i think, often not for the money, right? No, this is a way to put it. You know, we looked the other week at what was a wrongful dismissal claim I don't know if you recall from a fellow who was a manager of a used car dealership and it was very clear that would be a more lucrative area for somebody to be in if they were in it for the money. I do recall that.
Micheal Mulligan:Yes, and for some comparison, the average salary, according to the provincial government, for family doctors in BC in 2023 was $385,000.
Micheal Mulligan:So about $100,000 more than what they're offering provincial court judges, and so that's almost certainly one of the reasons why there's such a sharp decline in the number of people that are prepared to go and do that, which is too bad, because it's a very important job and you want people who are experienced to be prepared to go and do it.
Micheal Mulligan:The background of all of that, as we've talked about at least a couple of occasions, is a number of years ago the Crown Council Association was able to get their salaries linked to how much provincial court judges were paid like as a percentage of them, and the provincial government, i think, doesn't like that, because then what happens is if that independent commission recommends a salary for judges to be at whatever level, it causes their costs to go up for all the Crown, and that may be in the background of why they're limiting or not implementing what the independent commission's recommended repeatedly Bye everyone.
Micheal Mulligan:In that regard, one of the interesting things that's happened because of inflation that's been going on is now the lawyers who work for the provincial government who are not crown counsel, are now paid more than what crown counsel are paid of equivalent experience, because they would receive inflation increases as a government employee, whereas the judges and crown and so on don't.
Micheal Mulligan:They're paid in accordance with the recommendations from that committee as modified by the provincial government, and so that, i think, was a really interesting takeaway when I had a look at these numbers, and well, i'm sure there isn't going to be a whole lot of sort of tears in the public for people who are still paid very well right. That shouldn't be ignored. We're now getting to a point where it's clear that there just aren't enough senior people who are prepared to do the work, and we shouldn't get emotional or teary about it. It's kind of like if you want to attract you know GP, family doctors, you're going to need to pay them according to the market, or you're just not going to get them. Indeed, there's no other way to put it. So that's what's going on and that's what I thought was interesting in that report that just came out from the Judicial Council of British Columbia.
Adam Stirling:Indeed, approximately three and a half minutes remain. And one more matter the duty to defend. It says.
Micheal Mulligan:Yeah, this is, i think, an important thing for people to know about. So when you purchase insurance like the house insurance, for example, right, one of the things that your insurance policy will cover would be sort of liability. Let's say, somebody slips on your AC path and sues you, right, for example, walk up to your house. But another thing which is an important element of insurance is what you just mentioned called the duty to defend, and what that means is that if somebody sues you, if you've got an insurance policy, in addition to there being an obligation to pay the claim, if there's a claim that would be covered by your insurance policy like somebody slipping on your steps or something like that, right going to your house the insurance company would also have a duty to defend the claim, like hire a lawyer to go to court and litigate it or settle it or whatever needs to be done. And so the case there was a recent case out of Surrey which caught my attention that discussed that issue, that issue of the duty to defend, and it went through what those general principles are assessed And the general way that's looked at is that, first of all, all provisions of insurance contracts are supposed to be interpreted in a way that an average person would interpret them, reading the policy, not in some specialized way like the insurance company might prefer.
Micheal Mulligan:Where there's ambiguity in a contract of insurance, there's generally this approach called contrapreferendum. It's like if you draft it and there's ambiguity, the ambiguity is going to go against you right. And so there's generally a pretty broad interpretation of when an insurance company is required to pay the legal expenses to defend a claim if the claim might be covered, and that's really the test. The test would be when you look at an insurance policy, if what somebody is suing an insured person for could be covered by the policy, like the insurance company might have to pay out if the claim was successful, then the insurance company will be required to also defend the claim. And so, in the particular case that caught my attention, it was the city of Surrey who had an insurance policy and somebody, unfortunately in the Surrey Recreation and Leisure Center was using a leg press machine where a pin fell out and injured them right.
Micheal Mulligan:And so the issue was does the insurance company have to pay to defend the claim against the city? And ultimately, with that approach, looking at it, reading the contract in a regular way, like a regular piece person would read it and asking the question could this be covered under this claim if the person was successful in suing over the pin that fell out? The answer was yes, and so for that reason, the insurance company the general cooperators insurance company, had a duty to defend the city of Surrey. And so the takeaway there is that if you have insurance, one of the things you have is coverage if a claim is made. That's covered by the policy. But you will also likely have that duty to defend so that if you get sued and the policy might cover the claim, the insurance company is going to have to pay for the lawyer to defend it so that it's dealt with properly.
Adam Stirling:So that's what the duty to defend is Michael Mulligan, with Mulligan Defense Law, is legally speaking during the second half of our second hour every Thursday here on CFAQ. My pleasure, as always, michael, until next week. Thanks so much. Have a great day, all right, you too.