Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Self-defence and Charge Approval and the BC Government in Court with Government Lawyers
The episode begins by discussing the decision to discontinue a prosecution arising from a Nanaimo business owner who gets shot after trying to retrieve his stolen property from a homeless camp.
Crown Counsel has a duty to only approve and proceed with criminal charges where there is a substantial likelihood of conviction.
In the case involving the business owner who was shot while attempting to recover property from a homeless camp in Nanaimo, further police investigation revealed that the initial allegations made by the business owner were not accurate.
The business owner initially claimed the is attended the homeless camp unarmed, with three other men, to look for stolen property.
Further police investigation revealed that the business owner attended with six or seven other men and that he and others in the group were armed with batons, a 2x4, and bats of broomsticks. They were also wearing protective gear and gloves with hardened knuckles.
The police investigation also uncovered a video of the business owner hitting a camper in the head with a baton. The business owner had also thrown a camper and his girlfriend down an embankment.
The business owner stopped operating with the police.
The new information uncovered by the police made it clear that self-defence would be a real issue at trial. Where self-defence is an issue, the Crown would need to prove, beyond a reasonable doubt, that it was not applicable.
Given the inaccurate report made by the business owner and the evidence uncovered by the police that the business owner was armed and had hit a camper on the head with a baton and thrown two people down an embankment, the Crown concluded there was no longer and substantial likelihood of a conviction for an offence relating to shooting him.
Also, on the show, two separate pieces of litigation between the BC Government and virtually all of the lawyers who work for the government are discussed.
The first case arises from a dispute between the BC Government and the Crown Counsel Association. This case involves the obligation of the government to negotiate with the Crown Counsel Association over the terms of employment for Crown Counsel, assigned to conduct bail hearings on weekends and holidays.
Following the expiry of an agreement with the Crown Counsel Association, the BC Government took the position that it could unilaterally dictate the terms of employment. The Crown Counsel Association took this issue to arbitration and won: the Arbitrator ordered the government to negotiate.
Not liking this result, the BC Government is attempting to get a judge to overturn the arbitrator's decision rather than engaging in negotiations.
The second case discussed involves virtually all lawyers working for the BC Government who are not Crown Counsel. These lawyers voted overwhelmingly to join a union called the British Columbia Government Lawyers Association.
The government didn't like the idea of these lawyers having their own union, so it passed legislation forcing them to join a union called the Professional Employees Association.
The lawyers involved didn't want to be a part of this union, and the union, for its part, didn't want to represent a group of people who didn't want to join it.
This has resulted in the British Columbia Government Lawyers Association suing the BC Government on behalf of the government lawyers alleging that forcing membership in the unwanted union violates the constitutional right to freedom of association guaranteed by section 2 (d) of the Charter.
Follow this link for a transcript of the show and links to the cases discussed.
the time for legally speaking, joined as always by Michael Mulligan, barrister and solicitor, with Mulligan defense lawyers. Morning, michael, how we doing. Good morning, I'm doing great. Always good to be here. Some really interesting stories on the docket this week. I'm reading here charges against an enimicamper for pointing a firearm stayed as a result of further police investigation. There's a lot there, so let's unpack it.
Michael Mulligan:Indeed, there is a lot to unpack In this case. People have probably heard about. It dates back to March of this year and it's from Nanaimo, and the background is that a business owner in Nanaimo had his business premises broken into, things stolen. A couple of days after that. A friend of the business owner believed that he saw one of the things that was stolen in the break in at the side of the road next to a homeless encampment in Nanaimo. Now, rather than phoning the police to do something about that, it would appear that the Nanaimo businessman collected up posse of friends to go and deal with the issue himself. As he originally reported it, the business owner said he went there with three friends unarmed to retrieve the stolen property, and there was a video of some of the interaction which took place. Ultimately, after a chaotic interaction at this homeless encampment, the business owner wound up being shot in the stomach and was eventually taken for medical treatment. Happily sounds like he was okay at the end of the day.
Michael Mulligan:Following some surgery, one of the campers was arrested and he was charged with pointing a firearm by the Crown. Now the interesting. A couple of interesting things there. First of all, in order to approve a charge. The charge approval standard is two-fold First of all, does the Crown conclude there's a substantial likelihood of conviction, and then is it in the public interest to proceed. So the Crown initially concluded, based on the initial police investigation, that that charge appointing a firearm met the charge approval standard, and so they approved it.
Michael Mulligan:However, as sometimes happens, the Crown asked the police to conduct further investigation with respect to the identity of the person charged. They were concerned about the strength of the evidence to establish that the person they had charged was that the person who pointed the firearm. And so the RCMP went off and indeed they conducted further investigation. They found some evidence which was indeed helpful at confirming the identity of the person who pointed the firearm. However, the further investigation cast quite serious doubt on the version of events that the business owner had provided to the police. The further police investigation revealed that, rather than the business owner showing up unarmed with three other people, the business owner in fact showed up with between a total of seven and eight people who were armed with things including, according to the police investigation, a bat or large broomstick, a two by four, the business owner, a metal ass baton. It sounds like the business owner. They seem to have dressed up like characters out of Mad Max, with one person wearing a motorcycle helmet, another one wearing the business owner and another wearing protective gear with hardened knuckle gloves.
Michael Mulligan:And the further investigation and careful review of the video showed the business owner, contrary to his claim, that he was unarmed, striking a camper on the head with a baton. And then there was evidence that the business owner had thrown one of the campers and the campers girlfriend down in an embankment and the business owner had threatened to get a gun and shoot the campers. Okay, and it was in that context that the camper is pointed the gun at, the paintball gun at the business owner and the business owner wound up getting shot in the stomach. Yes, and so it's in that very different context, right Of the business owner, now armed with a group posse of seven or armed, physically assaulting the campers.
Michael Mulligan:But the crown had to assess does this meet the charge approval standard?
Michael Mulligan:Now, to further complicate matters, perhaps, having had it revealed that the story he told was not accurate, the business owner stopped cooperating with the police and wouldn't provide them any further information. Perhaps I should say out of a concern that that video tape of him hitting a camper on the head with a baton might put him in some jeopardy of being charged. And so the way the crown hits to analyze this right, because that additional evidence raised an issue about whether the person who eventually shot the business owner in the stomach was acting in self defense. And so the crown has to analyze that. And I should say this is interesting for most people where there is a basis to believe that self defense might apply, as would be the case here, the way that's analyzed is not whether the accused person could prove that they were acting in self defense. The way that would work at a trial is the crown would need to prove that the accused was not acting in self defense. That's the function of the fact. You're presumed to be innocent and the burden approves on the crown right.
Michael Mulligan:And that it's not an assault if you're using force to protect yourself or someone else. And so, in the context of what the police discovered in fact happened here, with this group of seven or eight men wearing protective equipment, carrying weapons, two by fours batons bat, throwing people down the hill, hitting one of the campers on the head with a baton, who was taken to hospital as a result of that, and they found that that was unprovoked. It was the group of seven or eight people, including the business owner. The investigation revealed appeared to be the aggressors doing that to the people's, the homeless campers, and so it's in that context that the crown would have to assess whether they could prove beyond all reasonable doubt that the shooting of the armed business owner did not constitute self defense right.
Michael Mulligan:And one of the principles there is that self defense, the sort of force used for self defense, it has to be broadly proportionate to the harm or the risk, right? So, like you know, if somebody was coming up and poking you in the arm, you couldn't shoot them to stop yourself from being poked. That's over the top, right. But there's also a principle that force used in self defense doesn't need to be measured with nicety, right? Because the reality is that these things happen on the quick. When somebody is clubbing somebody over the head with a baton metal baton, right, you may not have time to sit there and think well, gee, what's the least force I could use to stop the baton beating? Indeed, you know, might I be able to do that with a rock? That might work. I don't know if I can throw it that far. Well, there he goes, he's hitting the person again.
Adam Stirling:Yeah, I'm sorry I shouldn't laugh, but no, it makes perfect sense.
Michael Mulligan:Yeah right, you don't. You don't need to sit there and do the most careful calculation is how could you write it through the ideas? Oh, my goodness, I can't do anything else. This person appears to be throwing people down the embankment and hitting them on the head with a baton. Okay, right, yeah, that in that context it might well be. I think the weapon in question was a 22. I can't say like a small caliber rifle Shooting a person in the stomach might be proportionate to the harm caused if you're hitting somebody on the head with the metal baton and throwing people down an embankment, taking into account other factors such as the large number of people that were there and how they were armed and what they were doing. And so, in all of that context and this is another important thing to remember is that the, the crown's obligation to do that charge approval assessment is not a one-time thing. They don't say, well, the judicial report said it was, look good, we approved it, and they don't just keep running right.
Michael Mulligan:If additional evidence is gathered by the police, as was the case here, that just fundamentally changes the assessment as to whether there's any substantial likelihood of conviction. The crown's charge approval obligation is an ongoing one, and so, with the benefit of the additional evidence the police gathered about the business owner not being truthful, the larger number of people, the fact that they were arbed, the fact that they were throwing people down the embankment and the fact that the business owner was on video hitting one of the campers on the head with a metal baton With that additional information, the crown came to the conclusion that there was no longer any substantial likelihood of conviction and the charge of pointing the firearm was state. The other interesting thing about that is crown has authority to and it's not a requirement but they have authority to provide a public, clear statement about the reason for doing what they did. Right, because this case developed some public attention. Oh, yes, I recall when it first happened. Yeah, and so, and interestingly, after this decision there were still some people providing perhaps it didn't have the context that I've just provided from the clear statement the crown released about what the police investigation revealed that we're still suggesting somehow it was inexplicable that the charge of pointing the firearm wasn't proceeding right, and so that's. This is a good example of why it is that this kind of an explanation is a valuable exercise, so that people who are sort of following this in a general way aren't left somehow with the impression that there was some bizarre and unsupported decision made not to continue with the prosecution.
Michael Mulligan:Right, because when you just tell somebody a business owner was shot in the stomach while trying to retrieve his stolen property, right, you think, well, that's outrageous, you can't go around shooting people.
Michael Mulligan:But it's only when you find out the business owner was apparently misleading the police, armed, hitting people, and there with a posse dressed up like characters from Mad Max, that you might conclude this case was going nowhere.
Michael Mulligan:And so the result of it was exactly what we saw here at State, and we'll need to wait and see whether there's any consequence for the business owner. He is, after all, on video hitting somebody on the head with a metal baton, and so that is pretty serious conduct, even if after that you wound up getting shot in the stomach. And so the case may or may not be over, but at least the prosecution of the person with the 22 rifle is over. And so that's the update on what's happening with the shooting at the encampment in Nanaimo and I suppose if there's any broad takeaway here, if you have your stuff stolen, you think you figured out where it is. Don't gather a posse and dress up like a movie character, phone the police and perhaps you won't get shot and you won't wind up on video tape hitting somebody over the head with a baton. Neither of those are really very satisfactory conclusions, certainly.
Adam Stirling:Legally. I'm just curious, and I don't recall if you actually covered this, but if the explanation to the investigators, to the police, had been more complete. Let's say and more forthright say yeah, you know what, I was frustrated, so we got some armor, I had a pole, we went in there yes, they were doing stuff, and then they shot me. Would the case have gone differently?
Michael Mulligan:It might have had a different character to it, but I dare say he has. Of course, self defense is going to be analyzed from the perspective of the accused person. Okay, and so here you've got somebody who there's no evidence they had anything to do with the stolen property, they're just some camper, right, I see? And so if you're some person camping in the forest and a gang of seven or eight armed men show up, begin throwing people down the hill, hitting people over the head with weapons, right, I see, from your perspective, right, the response of stop that right, right, and I shoot you in the stomach may be completely reasonable. And so it would be analyzed from the perspective of the accused person. Right, would it be reasonable in those circumstances to use force to prevent an assault or a continuation of an assault perpetrated by a group of seven or eight armed men dressed up in protective gear, with two by fours batons and a baseball bat, who are already in the process of attacking people?
Michael Mulligan:And so, in that context, I dare say, had that been presented in the most forthright fashion, the initial police response to the business person might have been sir, you're under arrest. Okay, you can't show up with an asparton and hit some guy over the head because you're angry about your stolen property. You've just assaulted a random person in the forest. Moreover, you can't throw people down in the bank. But no, you're gonna turn around, put your hands behind your back, you're coming with me, and that may still be how this thing plays out. We'll have to wait and see. This may not be the final word here, but it is important that people have all this context lest they be left with the impression that somehow the crown has just unreasonably decided not to continue with the prosecution of the person who had the 22 rifle.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers Always interesting legally speaking will return right after this commercial break. Legally speaking continues on CFAQ 1070 with Michael Mulligan, barrister and Solicitor with Mulligan Defense Lawyers. Next couple of stories, michael. Both have to do with the government of British Columbia and various associations representing lawyers Set this up for us.
Michael Mulligan:Indeed, it would seem that the province of British Columbia has now managed to get itself embroiled in litigation with virtually all of the lawyers working for the provincial government. Not a very positive state of affairs, I should say, from a labor relations point of view. The first of these pieces of litigation is a piece of litigation started by the province against Crown Council, and the background there is that for first of all, for a number of years, there's been tension between the province and Crown over their contract and rates of pay, which, as we talked about before, got linked to how much provincial court judges were making. And then, for now, more than a decade, every time there's a recommended change to provincial court judges salaries, the province refuses to implement that, probably because of the impact it would have on paying Crown. That's the big background.
Michael Mulligan:The specific piece of litigation the province has just initiated against Crown involves the conduct of bail hearings on weekends, a sort of a topical thing, and there's been a long history to that. It used to be in larger places, including Victoria, that Crown would come in at least on Saturdays in person to conduct charge approval and bail hearings for people arrested, like on Friday night pretty busy time right, and that seemed to work pretty well. It was done in person, but there was then a shift to having bail hearings conducted by telephone out of a justice center in Vancouver. For a variety of reasons, including cost, and for a number of years, the way it worked is they had police trying to conduct the bail hearings without the benefit of Crown on Saturday mornings and Sundays mornings Well, all day Saturday and all day Sunday in fact, and that was really mixed in terms of how well that worked because, frankly, the police aren't trained to conduct bail hearings and so, for the same reason you would not want to have Crown Council armed with guns and told to go and tackle anyone alleged to have robbed a bank or store on the weekend. You probably don't want to ask police to conduct legal proceedings right. Some might have done fine, maybe some experienced people, but others it was really pretty unsatisfactory, and I recall back at that time this is now several years ago some of those were just not conducted well because they didn't know what the legal issues were, how to present the evidence of the bail hearing, and so aptly there was a move back to asking Crown to cover those things or having Crown cover those things on the weekends, and so that seemed to write the ship a little bit.
Michael Mulligan:But the ongoing labor dispute between the Crown Council Association, who represents Crown, and the provincial government have led now to litigation over that process and how that's to happen. And there had been for a few years an agreement between Crown and the Crown Council Association and the provincial government over how Crown were going to get to be assigned to do that. Who's working Saturday, sunday and the long weekend, right? Who's working on Christmas? This kind of thing? Right? You get an extra day off if you work on the Saturday, christmas or whatever it might be that sort of a stuff of labor agreements, right? Yes, but the province has now taken the position that they need not negotiate with Crown Council on that issue and they are free to dictate how they are to conduct these things and who's to do them. That obviously didn't go over well and it led to arbitration about whether the provincial government can unilaterally direct Crown and how those weekend bail hearings are to be covered. The provincial government lost the arbitration. The arbitrator ruled that the provincial government does indeed need to negotiate with the Crown Council Association over those kinds of issues like who's covering it and how many people are there, and what if they're on vacation and all the natural stuff that would be potential issues there. And the provincial government really doesn't like the fact they've been ordered to go and negotiate, and so they've decided to start a court challenge trying to get an injunction to stop the order of the arbitrator so that they don't have to negotiate those conditions with the Crown Council Association. And so that's now going to be how that's going to percolate away. We'll have to wait and see whether they get a temporary injunction about that and whether they're able to unilaterally order Crown to be doing those things, which will be an interesting legal issue. We'll wait and see how that goes. We'll keep an eye on it. But boy, that just doesn't seem like a very good way to manage the people you need doing an important job, taking a position that you can unilaterally order them to do things without engaging in any form of negotiation. So that's half the lawyers in the province or the provincial government lawyers, right. The Crown Council, yeah.
Michael Mulligan:And then the other piece of litigation which was just filed two days ago is litigation on behalf of the British Columbia Government Lawyers Association, and that's an organization that would represent essentially all the lawyers who aren't Crown Council, who work for the provincial government, all the civil lawyers. And the background of that is that the civil lawyers voted overwhelmingly to join the British Columbia Government Lawyers Association to have them as their union, and they did so in accordance with the procedures the NDP government introduced where they can sign cards to join the union. They people do the signed up. And then that organization filed an application to become the union for the lawyers who work part of the Crown Council Association. The government's response to that was to pass another piece of legislation called Bill 5 that forced all of those lawyers into a union they didn't want to be part of and in fact didn't want them, called the Professional Employees Association.
Michael Mulligan:And so this piece of litigation is a piece of litigation claiming that that decision to force all the civil lawyers to join a union they didn't want to join and which didn't want them, is contrary to.
Michael Mulligan:It is alleged, at least in this piece of litigation, that that violates Section 2D of the Charter, which is freedom of association, and that sort of makes sense. Right, generally speaking, a union is going to be an organization that employees want to be part of, and who wants the employees to be part of it, and here the government's decided they would rather have those lawyers in that organization rather than their own, like the Crown Council Association. Perhaps the government's concluded it will be easier to get what they want from the Professional Employees Association rather than perhaps the more militant BC government lawyers association that those lawyers wanted to join. And so by that process we now managed to have litigation going on between the provincial government and virtually every lawyer who works for the provincial government. So we can keep an eye on that and see how that one plays out along with that issue involving the Crown, michael Bolligan with Bolligan Defense Lawyers, legally speaking, during the second half of our second hour every Thursday.
Adam Stirling:pleasure is always until next week. Thanks so much. Have a great day. All right, you too.