Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
MVA Death Sentence, ICBC Data Breach Class Action and Appeal Bail
What if you found yourself at the receiving end of a judicial system, prosecuted for a fatal accident with no evidence of intoxication, excessive speeding, or aggressive driving? This is the tragic reality for a 21-year-old driver with no history of bad driving or criminal record, facing a heart-wrenching sentencing decision. Join us as we unravel this case with Michael Mulligan, with Mulligan Defense Lawyers. Michael helps us explore the implications of prosecuting cases where there are no apparent signs of bad driving, the delicate balance between law and justice, and the societal impact of such sentencing decisions.
Delving further into the world of complicated legal concepts, we navigate the labyrinth of vicarious liability in the context of a class action against ICBC.
The case involved an employee of ICBC selling personal contact information associated with the license plates of cars parked at the British Columbia Justice Institute where police and other public safety employees are trained.
The information was used to target the houses of the vehicle owners including with arsons and shootings.
Mulligan unravels the factors courts consider in these instances and the implications of ICBC's appeal and whether is was wise for ICBC to attempt to avoid liability in the circumstances of this troubling case.
We also shed light on an intriguing case of a man appealing his sentence, dissecting the elements that come into play when a person asks for bail pending the hearing of a sentence appeal.
Unlike a person seeking bail prior to trial, someone who has been plead guilty and been sentenced no longer enjoys the presumption of innocence.
This episode promises to leave you with a fresh perspective on the intricacies of the law and the delicate balance between justice, liability, and compensation.
Follow this link for a transcript of the show and links to the cases discussed.
This time for our regular segment 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.
Michael Mulligan:Always good to be here.
Adam Stirling:Interesting stories on the agenda today. Looking now sentencing for driving without due care and attention in a case that resulted in death. There's a lot there, let's unpack it.
Michael Mulligan:There sure is. And this is a case from Vancouver Island, it's a case from up near Campbell River, from the Old Island Highway, and it's simply a tragic fact pattern. A fact pattern involved a 21 year old who was driving one way in the Island, old Island Highway and a 29 year old teacher driving the other direction, and the 21 year old crossed inexplicably the yellow line on a slight curve. There was a collision and the teacher passed away. It was just a tragic circumstance. The young man that was driving was charged with an offense under section 144 of the Motor Vehicle Act, which makes it an offense to drive without due care and attention, and it's a category of case which can be very challenging, where they are prosecuted in terms of well, how do you sentence somebody for that? What factors do you take into account here? There was no evidence of any intoxication, no evidence of any excessive speeding, no evidence of any aggressive driving of any kind. There wasn't bad weather, it was during the day the 21 year old was driving back from school, right. And furthermore, that fellow had not only no criminal record, no driving record, right. So it's not somebody who drives carelessly. No evidence of anything like that, just this inexplicable accident with a terribly tragic result the teacher who was killed. There's lots of evidence before the judge about what a positive impact she'd had on the lives of other students, what a loss that was for her extended family. The young man who was the other driver was obviously remorseful. He pled guilty for doing this right, for causing the accident in this way, and he was sentenced.
Michael Mulligan:I should say it was a joint submission and we've talked about those before. That's a case where the crown and the defense agree on what the appropriate sentence would be and where that occurs, judges in fact required to do what both lawyers are asking the judge to do, unless what the judge is being asked to do is so inappropriate that it would bring the administration of justice into district put right, which is a very high bar. And the reason the law is that way is that otherwise cases just could never resolve. Every case would turn into a trial right. Because if, where you had an agreement between the crown and the defense, if the judge could just ignore that and do whatever they wanted, it would result in many more people saying well, I, you know how do we resolve a case Right? It just would proceed to trial, which isn't workable, and so that's the legal framework.
Michael Mulligan:And here the joint submission put before the judge was a fine of $1,200, 25 hours of community work service and a 10 month driving prohibition.
Michael Mulligan:And that's in keeping with other sentences for driving with, you know, for this kind of a motor vehicle act driving offense when there's nothing else going on, right, you know, there's sort of these series.
Michael Mulligan:The judge looked at the series of tragic circumstances where, you know, somebody tragically died but the level of moral blameworthiness of the person who you know was responsible for the accident was very low, right, yeah.
Michael Mulligan:And so it raises that just really challenging sentencing issue, which is what do you do when you have a very low degree of moral culpability but a tragic outcome? And the judge ultimately concluded that judge was bound to impose the sentence that was being asked for. Moreover, it wasn't keeping with other sentences of that kind, and the judge took pains to point out that the sentence is not intended in any way to be a reflection of the value of the life that was lost, which is impossible, right, there's no sentence that's going to bring the teacher back. Yeah, and one of the things which this case, and other ones like it, causes me to think about is the issue of whether there should be in all cases where there's a what appears to be a sort of an inexplicable accident, with no other sort of bad behavior driving behavior around it, whether we should be prosecuting those things at all, because, of course, where you have other, not every accident results in a charge and the person you know be taken to court right.
Adam Stirling:Yeah.
Michael Mulligan:Sometimes car accidents are just that, accidents happen, right. In fact, in British Columbia we seem to have adopted this model of no fault, it's right. Well, there's no one's fault at all, right, these things just happen. We don't even bother trying to figure that out, right? We just now, at least on the civil side of things, provide ICPC benefits to people regardless of who caused the accident, on the basis that that's administratively cheaper to not have to figure out who's responsible or whether there was carelessness there. And so you know. It's not to say that there aren't cases where there is sort of some serious driving behavior that merit prosecution, right, in addition to any civil outcome of a case. But this is an example of the kind of circumstance where there's nothing apparent about the driving that would appear to be blameworthy or careless, right, other than the fact that this inexplicable accident happened. Right. It would be certainly a different circumstance if somebody wasn't paired in some way or they were aggressive or speeding or doing something or anything that would lead you to think, well, that was sort of inappropriate behavior. But here all of that was absent, along with there being no indication that this person was a bad driver generally no history at all. Um, and so I suppose the thing I would ask people to think about, of course, is just how challenging that is. Because, of course, when there is a decision made and it's a choice, right, uh, about whether it's in the public interest to prosecute somebody, in in circumstances like this, um, of course, no sentence that's going to be imposed is going to, um, bring back the person who was lost, right, and there's virtually no sentence that could be imposed. It would be some measure of the worth of the person who was lost. That's impossible, right, and we don't want to put people in, uh, you know, we don't punish people for its own sake. We try to do it in some rational way, right? So why are you doing it to, you know, deter other people, or to rehabilitate the person or some rational purpose for it, right? Um, and so here you've got a remorseful person who obviously there was, something went to happen, there's some momentary inattention and a tragic result. It does raise the least in my mind the issue of not whether this is enough punishment for the person, but whether we could be prosecuting the person at all. Um, because if you do, you then wind up with the circumstance, like in this case, where some people are comparing it, saying, well, look, this is a death of a very, you know, well-respected member of the community. You know how can $1,200 be the result of that right? Um, and you know the sentence isn't some effort to try to um, uh, you know, be a measure of the person or the loss. That's impossible and that's not what's intended here, particularly with a motor vehicle, like prosecution, and so I just wanted to bring that to everyone's attention.
Michael Mulligan:The case has gotten some um publicity about the outcome and sort of whether that was a sufficient punishment, uh, but I suppose the uh alternative take I would have on it is whether it should be a circumstance where we're seeking punishment at all. Uh, because it's not every case where there's something bad that tragically occurs where it's necessary to come up with a punishment uh in response to that. Uh, you know, sometimes there are in life uh, some genuinely tragic um accidents, and this would appear to be one of them, and it's not an isolated thing. Uh, the judge reviewed various other cases of tragic things happening with cars, you know, not being put in park and rolling away and you know various other things happening, all of which may be some indication of civil liability. When we still had that Uh, but whether we need to stretch into uh criminal or motor vehicle act prosecution, I think is something that, uh, we should all think about as a community uh, because that is really a choice, and a difficult one uh, particularly when there's this kind of a tragic outcome.
Adam Stirling:Michael Mulligan with Mulligan defense lawyers, legally speaking, on CFAG's 1070,. We will continue right after this commercial break, legally speaking, continuing here on CFAG's 1070 with Michael Mulligan with Mulligan defense lawyers. Next story on the agenda, michael, is one that I believe that we have discussed before regarding personal information, the insurance corporation of British Columbia and vicarious liability.
Michael Mulligan:Yes, indeed. So this is a brand new decision out of the court of appeal uh dealing with exactly those issues, and the background of it? Um is the number of years ago uh, there was a employee of ICBC who was selling uh personal information uh to a man uh about the addresses and so forth of vehicles that were parked at the justice institute uh people who would be training to become police and other first responders Um and uh as a result of uh, this woman who was employed at ICBC I believe it was a woman um who was selling this information to a man for something in the range of $25 per license plate um, 13 of the individuals uh were then targeted for arson and shooting attacks on their homes. Wow, uh, the man purchasing the information from the ICBC employee um had uh persuaded themselves that uh, in some paranoid way, that uh people who were uh were controlling him. Uh, he was being targeted and controlled by the justice institute Uh, and so he was uh purchasing the information from the ICBC employee based on his observations of license plates of people who were going there uh and then proceeding to engage, and I think it was like fire, bombings and shootings of their homes Um, now that man, uh, was uh convicted and sentenced to 12 years in prison, uh. But the next shoe, and the one that was now being dealt with, was that, uh, he was.
Michael Mulligan:There was a class action started against ICBC for what occurred, and the action was brought in part under the Privacy Act, which makes it actionable. That is to say, you can sue where there is a breach under that act. And that act actually provides that you can bring that kind of a claim even if you don't have proof of actual loss flowing from it. And what happened is the court, the Supreme Court, classified two different groups, one being the people like the 13 people who were firebombed or shot at, and then, separate from that, I think it was 79 customers who had their information sold, even if they weren't the subject of, at least so far, shooting or arson at their home. And the claim was based on this legal concept of what's called vicarious liability, and the concept there is that you can have a circumstance where an employer can be liable for wrongs committed by their employees, which kind of makes sense when you think about it, right. But one of the challenges that courts have dealt with is the issue of you know how do you determine whether it's a circumstance where vicarious liability should apply or not. It's not everything that an employee does that the employer could be held responsible for, right? If you're an employer and your employee just goes rogue and does something completely unrelated to their job, the employer isn't financially on the hook for it, right? So there has to be some limit on that concept, and courts have struggled with that over the years.
Michael Mulligan:And one of the things that is looked for is the degree of connection between the wrongdoing and the wrongdoer's employment right, and sort of how connected those things were, right. It's one thing. If the you know, the Walmart employee decides to step out of the store and shoot somebody in the parking lot, you say, well, that has nothing to do with their employment there, right, they've just gone off and committed a crime. Whereas if you had somebody who, as a result of you, know what their employment was and one of the other ways it's been articulated is that it empowers the employee in a material way and increases their risk of committing the kind of activity which is being sued for, right. And so here they say look, you know, this was the only reason this ICBC employee was able to look up people's addresses and phone numbers based on their license plate was because they were an employee of ICBC with access to the computer system, right? Yes, and moreover, one of the other things which the court of appeal and the trial judge pointed to is just the year before this, icbc had done an audit and found that employees were indeed doing exactly that accessing people's private information with no apparent business purpose. So they knew this was going on and yet they didn't do anything that stopped this person from continuing to do it. Right, and so that was a factor.
Michael Mulligan:The other argument that ICBC made, unsuccessfully, both at trial and on the appeal, was what I thought was a pretty out there argument, which was well, this wasn't private information. That was the other argument they made, saying well, you know, this is just where you live and your contact information and so on, that's not really private. That got pretty short shift both at the trial level and on the appeal, pointing out that ICBC had internal, an internal code of ethics that speaks about the fact that they have this monopoly over basic car insurance in British Columbia, that they're entrusted with personal information and how it's important that they keep all of that personal information under proper control, when that was not happening, right. So the appeal you can probably judge from that that ICBC brought was unsuccessful, and so there will be compensation for these people who from ICBC, due to these people who had their homes shot at or lit on fire, as well as the people who just had their personal information given to this deranged person, even if those things haven't in fact occurred for them.
Michael Mulligan:I must say, the other thing which this brought to mind for me, looking at the appeal and reading it, is the issue of just the appropriateness of ICBC appealing this issue at all, right. Now, of course we all wanna get to the right legal outcome, right, and you know, those were certainly legal arguments to be made about. Well, you don't have a privacy interest in your home address and contact information, although that one seemed pretty weak. And the other argument about the vicarious liability, which might have some legal interest, that we just talked about. So what is that and what's the degree of control? But we have to remember, here you're dealing with a public company which is in this monopoly position, right, and so, to my mind, everything that that kind of an entity is doing should be done with an eye towards fairness and reasonableness, right, not every legal thing that you can argue and fight about should be argued and fought about right and to that context that it causes me concern is, of course, we've had this discussion previously about the appropriateness of no fault insurance when ICBC is able to make decisions about people's lives and compensation and so forth when there isn't a proper and independent review process. Right, some of the review processes are by people that just work for the government, basically, and so it is.
Michael Mulligan:I must say I had some concern as I read through this Court of Appeal decision about why in the world is ICBC resisting compensation for the people probably police officers, who had their homes lit on fire or shot at by a deranged person who was able to purchase that information from their employee. Is that really something you should be taking to the Court of Appeal and resisting, or would the appropriate and fair response to that be oh my goodness, this is kind of our responsibility. We knew this kind of information was being accessed the year before it happened. Again, terrible consequences. We're terribly sorry about your house. Here's the check.
Michael Mulligan:You would sort of hope that wouldn't get litigated at all and it's not as if it's some be some crippling amount of money. It would be 79 police officers that had their other first responders, sheriffs, the other people like that right, who had their personal information sold to somebody who was going around doing that. You would think if you were fair-minded about it, the appropriate response would be well, okay, fair enough. What are the damages? We shouldn't have allowed this to happen. Let me write you a check and it will send you along a card and an apology.
Michael Mulligan:Not, we're going to the court of appeal 10 years after the fact, fighting tooth and nail, arguing that you had no interest in this private information, or it really wasn't private, or gee whiz. Should we really be on the hook for this? Why? Why are we litigating? Why would they be litigating it? It's a public entity. Everything they do should be fairness oriented. Clearly this was not. But anyways, we have an outcome and hopefully those people will get some compensation for what happened to them Obviously a terrible case and hopefully they put things in place so this is not continuing to happen. Precisely.
Adam Stirling:We have three and a half minutes left.
Michael Mulligan:Yeah, final case on the docket for today is a case involving a sentence appeal and how bail works for a sentence appeal. And the background of this is it's a man who pled guilty to robbery I think it was of a subway store, using an impellant gun and also breaching conditions that he was under at the time and he was applying for an extension of time to appeal. He hadn't filed the appeal within the required time periods. We had to ask for permission to appeal and he was asking both for that permission and asking to be let out on bail pending the hearing of his appeal. And in that regard, when you're applying first of all for the extension of time, you have to persuade the judge of the court of appeal that your appeal has some merit to it. Right, you're not just wasting time. And on that front the judge found yes, indeed it does.
Michael Mulligan:The trial judge looks like they made a factual mistake, saying that it was aggravating that the man pointed the pellet pistol at the employee, when that didn't happen. Right, everyone looks at crowns and agreement. That was just a mistake and there was some change in the sentencing legislation since then. So there's certainly something to be argued about. On appeal Fine, but on an appeal to get out on bail. Not only do you need to persuade a judge of the court of appeal that your appeal has sufficient merit, you also need to show that there would be a unnecessary hardship if you were detained in custody pending the appeal. The man argued that because he had testified for the crown in some other case, he was being life, was being threatened in custody. So there was certainly something to be said there. But you also need to want to appeal like this, persuade the judge that you would first of all surrender yourself if you're released. That was a problem because a man had a long history of previous convictions, including failing to show up in court. And further, you need to satisfy the court of appeal judge that your detention is not necessary in the public interest, and on that ground as well, the court of appeal judge, hearing the bail application and the application for an extension of time, concluded that you know this man has a very long history, going back some 30 years, of committing various offenses, including 22 breaches of court orders.
Michael Mulligan:And so, given that, even though the man's appeal may have merit and he will have to wait until at least I think it's October 10th when it's scheduled to argue the appeal, and despite the argument about his life being in danger because of his evidence for the crown and other cases, the judge, applying the test that's applicable to this, found that, despite all of that, there would just be two greater risks that either the man would not show up because he's failed to show up before, or he would place the public in some danger because of his 30 year history of previous convictions.
Michael Mulligan:And so that's how bail is sorted out at that stage. And it's a different approach, of course, because you're dealing then not with a person who's presumed to be innocent, which is what we've got at the beginning of a case. We don't know if the person did it or not and we presume not, right. But when you're dealing with somebody who is pled guilty, it's a very different analysis, right, and that's why the burden would be on him to establish those things, and that's why he didn't. And, despite the concerns and the potentially meritorious appeal, he will need to remain in custody at least until October to be able to make those arguments. So that's a bail on a sentence appeal.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday here on the program Pleasure is always until next week. Thanks so much. Have a great day you too. Bye now.