Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Public Drug Use Prohibited Only If Asked and the Tort of Misfeasance in Public Office
Do you feel like you’re reading a different language when you look at legal documents? You’re not alone. We’ve brought in legal expert Michael Mulligan to decipher Bill 34, the Restricting Public Consumption of the Legal Substances Act, and it’s not what you’d expect. This piece of legislation doesn't public drug use anywhere unless someone is first asked to stop by a police officer. Mulligan also sheds light on the process and consequences of seizing substances discovered during these encounters.
But we're not just decoding legal jargon today. We’re also unwrapping the little-known tort of misfeasants in public office and how it’s interpreted by the Supreme Court of Canada. Mulligan walks us through a real-life case of a man hindered by political interference despite crossing all the T’s and dotting the I’s for his run-of-the-river hydro project. This incident serves as a vital reminder that the law should always be upheld, and decisions should be made with fairness and objectivity. This isn't your everyday legal discussion, so get ready to dive into the fine print!
Follow this link for a transcript of the show and links to the cases discussed.
It's time for Michael Mulligan with Mulligan Offense Lawyers, legally speaking. Morning Michael, how we doing.
Michael Mulligan:Hey, good morning. I'm doing great. Always good to be here.
Adam Stirling:Interested in your thoughts because one of the things you and I have discussed a number of times over the years that we've done this segment is that the political communications and sometimes the political objectives of a piece of legislation can sometimes be at stark variance with the actual legal text of a statute and how that will be applied by the courts. I think we have another example today.
Michael Mulligan:We do. Perhaps it's the reality distortion field of the press conference, but indeed that happened again last week. I think many listeners would be familiar with the stories that followed the government announcement following the introduction of what is Bill 34 entitled the Restricting Public Consumption of the Legal Substances Act, and in the press release for that and all the discussion I heard about it in the public included a suggestion that the legislation. This is right from the press release. It says the legislation, if passed, will ban drug use in public and recreational focused spaces, including and then a list of bunch of things six meter radius of building entrances, six meters of bus stops, 15 meters of playground spray and waiting pools, skate parks, parks, beaches and sports fields. So looking at the press release and how it was discussed, I think people would quite reasonably believe that in fact this legislation would ban the use of illegal substances in those areas. And indeed, if you just have a very cursory look at the legislation, you might come to the same mistaken conclusion. Because indeed section three under the heading consumption of illegal substances says this three one a person must not consume an illegal substance in any of the following areas or places. Then it lists a bunch of places which generally conform with the press release and the talking points about this legislation. You have to keep reading, though, and all the way down to section eight of this piece of legislation, which says in eight, sub two, says this section five, the general offence and the offense act does not apply to this act.
Michael Mulligan:What might that mean? Well, what that means is that we have, in British Columbia, an act called the offense act, and the offense act provides that if you don't follow a requirement in a piece of legislation, you can be charged with an offense for not doing so. It's kind of what gives it some meaning, as opposed to sort of a aspirational statement of things you might hope would happen. That's sort of why that's the power to do something about it. If somebody just says well, that's fascinating. It says what I can't consume the legal substance by a spray or a waiting pool, right.
Michael Mulligan:And so this piece of legislation says that does not apply. Now, that's not completely unique, but because some legislation will have its own set of penalties set out in it, right? Rather than relying on the general provisions of the offense act, which would make it an offense to not follow a rule in any piece of legislation. And so, for example, the liquor control licensing act right, it has its own scheme of penalties that are set out in it, rather than relying on the offense act. So if, for example, somebody is drinking in the park, well, there's a section for that right and a range of penalties set out for that. However, in this particular piece of legislation, bill 34, the restricting public consumption of illegal substances act, it only applies to one section of the act and this comes from. This is set out here in section under the heading of offense, section eight one, and it says the person who fails to comply with a direction given under section four and it's an offense. Well, what about section three?
Michael Mulligan:Yeah, the one that says you can't do these things. It's not included. It's not an offense to do those things. It's not an offense to use illegal substances on a beach, sports playing field, in a park, on a playground, any of those places. So what is section four? Section four is this If a police officer has reasonable grounds to believe that a person is consuming an illegal substance in an area described in section three, the police officer may direct the person to do one of both of the following the police officer may cease consuming the substance or leave the area. So the legislation does not make it an offense to use drugs in the park, playground, skate park, any of those things. The only thing that it makes an offense is that if you're in fact doing that you're on the children's play swing using fentanyl you haven't committed any offense unless and until a police officer shows up and tells you hey, stop using fentanyl on the swing, set right.
Michael Mulligan:And then only if you then re still continue to use a fentanyl or refuse to leave Nothing, no offense has been committed until that happens. So if you had somebody who's sitting on the merry, go round smoking, crack, right. And you wonder up to me hey, you can't be here, there's no crack smoking, on the merry, go round. The legal response to me. Well, that's fascinating. I don't seem to be doing anything wrong, right, and in fact they wouldn't be in less than until a police officer drives over and tells them stop doing that, on the merry, go round.
Adam Stirling:So the offense is failing to leave after being told by a police officer, not the drug use that's right.
Michael Mulligan:So this legislation does not prohibit any of the things which the press release would clearly cause you to think they are prohibiting right. And even a very cursory read of it you would think oh yes, look right here. So you must not do these things. But you then put in the special section eight say well, that's not an offense. And then you haven't bothered to make it an offense under this piece of legislation, so it appears to have been intentionally drafted to make it almost toothless.
Michael Mulligan:And then the other thing which is interesting is that if you were on the merry-go-round using fentanyl and the police show up and they tell you, stop doing that. And if you don't stop doing it right, then at that point there is some authority here for the police to seize the substance you're using, right? If those things have all happened right, they've shown up, they told you you haven't done it, okay now, but they can't seize it. The police can't seize it if it was prescribed, if it was provided to you by way of a prescription and of course some people would have that, they would supply system. Yeah, those people, the police cannot take the drugs away from the non-compliant person on the merry-go-round if they got the drugs pursuant to a prescription.
Michael Mulligan:And the challenge there is going to be some police officer showing up at 3am in a park with somebody they're doing something or whatever at the school grounds and trying to figure out is that something you got from a prescription? Well, maybe, maybe not, and so that's a secondary issue. But the principal one here is that there isn't a power to stop this. So somebody like the school principal going and saying you know, get off the playground with your drug paraphernalia. They're not actually. There's no actually obligation to do that under this act, and so this hasn't yet passed. Perhaps there should be some consideration given to whether there should be some changes to this yep which would provide some capacity for you know the person who shows up right, the parent or the school principal or the security guard.
Michael Mulligan:I mean imagine that yeah let's say you're the small business person and somebody is sitting right outside the door of your business smoking drugs, right, yeah. And the security guard goes up and says, hey, move along, or the store owner, they get lost. You can't be doing that here. Well, indeed, you can, because of the way they've drafted bill 34. By law, they stop, they're, they're good to go. Well, this is a provincial system. There, if they're a peace officer, the issue would be is the person a peace officer?
Michael Mulligan:okay, so that's the distinction if you're, if you're, if you're a police officer and it's defined here. These officer means a person who, under the police act, is a provincial constable, a municipal constable or a designated constable. So it's a narrower definition. I shouldn't have said peace officer. That can be a broader definition. There's people that are peace officers that may not meet this definition of police officer. So they've defined it.
Michael Mulligan:It's got to be one of those people that shows up and tells you to stop doing whatever you're doing in the doorway or on the swing set or whatever, and then at that point you have the option to leave or stop doing it. Right? So it would be like it's not the equivalent of that's the other line that was using. All this just brings it in accordance with liquor or smoking regulations. That is not how the liquor control, licensing act or the smoking rules apply. You can't just be.
Michael Mulligan:You're not allowed to anyways be sitting on the swing set drinking beer in the middle of the day that is already in offense before the police tell you to, hey, stop that right. Otherwise the state of affairs would be you'd be able to sit around drinking, you know, in the park, and maybe we should allow that. I don't know right, but you can't just be drinking away in the park until the police show up, until you stop doing that, right, and so that's what they've done here, and that is entirely inconsistent with how this has been portrayed. So I think it's really important people know what's in fact going on, and it's more so when there are there's a misleading press release about it and the government statements of what they're doing just don't conform with the legislation that they've introduced. So that's the bill 34, the restricting public consumption of illegal substances act, or they could add to the end of the title maybe bracket, if asked by a piece of police officer close bracket. Otherwise you're still good to go how is this real?
Adam Stirling:but you're absolutely right. No, I totally see it. Michael, I really appreciate your insight because I was one of those observers. You didn't realize what the legal implications of this were actually limited to well, they, they.
Michael Mulligan:They told you that it did more than it did, so that hardly surprising, right?
Adam Stirling:all right let's take our first break legally speaking. We'll be back in just a moment with Michael Mulligan from all again defense lawyers. Legally speaking continues with Michael Mulligan, barrister and solicitor. With Mulligan defense lawyers Michael up next on our agenda. I'm reading here a 10 million dollar award against the province for quote misfeasants in public office. What is that?
Michael Mulligan:it's a rarely used tort which provides that you could sue a government for that tort the misbeasons in public office. And there are two ways in which that can occur. It's been described by the Supreme Court of Canada as a category a or category b. Category a would be involves conduct of a that is specifically intended to injure a person or class of persons, that is to say a government decision. Or category b involves a public officer who acts with knowledge both that he or she has no power to do the act contemplated and the act is likely to cause injury to the plaintiff. So that's the cause of action. That's the tort. The. The basis upon which this lawsuit was brought and succeeded and the background of it is that a man formed a company and wanted to develop a run of the river hydro project, and the judge describes what that means and the a high. A run of the river hydro project is different from like the big projects that bc hydro might build with a big dam right, and instead what it does is it diverts water from a river or stream, runs it through a turbine and then puts it right back into the river or stream, so it doesn't like block the river and make a big lake. It just uses the water as it flows by to generate electricity. That's the concept of it, and this fellow was interested in doing that and in fact, when he started the process, bc hydro had put out a call for people to do exactly that, and we're now actually right back doing that. That was from 2005, where there was this call for people to produce power privately and sell it to bc hydro because they realized they were going to have a shortage of power. Right, we're in fact going to be doing that again, because they determined that we're going to have a shortage of electrical power in bc and he entered into an agreement with bc hydro. They said well, buy your power if you can produce it in this way.
Michael Mulligan:And so the man went and applied for the required permits to do that that. He needed two permits one under the land act to be able to use crown land to build the run of the river generation facility, and then he also needed to apply under the water act for permission to use the water. Well, it ran through the run of the river setup and he made that uh at those applications and various, as you might imagine, forms and pieces of paper went back and forth and things were all appearing to be on track uh, and both of those acts have somebody referred to as the statutory decision maker, like the person in government who is in charge of giving permission or not giving permission to use crown land or use water for various purposes, right, and the act was set out criteria for that in considerations and environmental considerations, all of those kinds of things, and indeed, having gone through the all the various hoops that those things would entail, uh, the one of the statutory decision makers, uh called him and told him that, uh, they were feeling comfortable. We were feeling the language was, we were feeling comfortable in issuing the required permits. So everything seemed to be on track uh.
Michael Mulligan:And then, for some reason, uh, politics intervened, uh and the uh in the form of the then minister uh and assistant deputy minister uh, and it appears that what happened was that they had uh some communication with the squamish nation uh, who told them that they didn't like the idea of this project, didn't support it. Uh, they had objections to it based on, uh, barely a cultural practice involving bathing in the river. Uh, and they thought that the using the water first to generate electricity would interfere with that in some way, and so a political decision was made, uh, based on, it would appear, political considerations concerning, concerning the squamish nation and their objection to it. Interesting, uh. And so the after that, uh, initial approval yes, we're comfortable doing this by the person who's supposed to make the decision a telephone call came from the then assistant deputy minister, followed up by a letter saying, no, yeah, your application is denied. Uh, and that's the basis, that's the factual foundation for this claim that the decision to say no, uh, was a political decision that wasn't made in accordance with the requirements of those acts the land act and the then water act which would have its own set of criteria for when you approve these things and don't approve it.
Michael Mulligan:Part of this, of course, is that we live in the system where we have the rule of law, we have laws that would set out criteria and how decisions are, should be to be made, and the expectations is that decisions would be made in accordance with the law. Right, yeah, so that we can organize, you know, you can organize your life accordingly. You can look at the, you know, land act. Okay, what do I have to do if I want to use some land for this? Okay, I'm going to do this and meet this requirement of this test. Okay, here I go, right, yeah, and the expectation is that government officials would make a decision in accordance with the law. Okay, there are five criteria here. Let's look at what you've got here One, two, three, yeah. Okay, you meet all of them. Congratulations, there's your permit.
Adam Stirling:Right, yes.
Michael Mulligan:You don't want government's decisions being made on the basis of capricious considerations or political thoughts, or whether I like you or don't like you or anything else, right. You want lawful decisions in accordance with law, right. That's what allows us to all live in a non-topsy turvy world. But that's not what happened here, and the judge in the case accepted that. Indeed, this political intervention and decision to deny the requirement, after the person who should have been making the decision said yes, this appears to be over comfortable. Doing this, it looks like you've met the legal criteria. The political consideration of well, we're concerned about this objection by the Squamish nation. That is not one of the criteria under the land act or the then water act. That's just not there, right? And so the judge found that the political decision to deny the application, apparently on that basis, was indeed met the criteria for that second form of that tort, the tort of misbeasons in public office. And that's where you have a public official who knows that you don't have authority to do what you're doing. You do it anyways, right? And you know that what you're doing there is likely to cause injury to the plaintiff. In this case, you can't build your project you've been working on for several years. And so that's what happened. That's what the judge found happened Political interference for desire to meet political wishes concerning this first nation.
Michael Mulligan:And so the judge then went on to analyze okay, well, how much money did this small company we had one person right, the fellow who was doing all of this, he was the only owner, director and everything else Now, how much did he lose? And the court concluded that if all of this went as it should have gone right, in terms of how much money would you make, present valued for the production of power from this facility, minus the costs, the amount lost was 56.25 million. And the judge then went on to take into account the fact that there are, of course, contingencies in life. Other things could have gone wrong. You know, maybe the you would have had some problem building it, or maybe prices would have gone up to build it, or the you know how much you got to the power could have gone down. And took all of that into consideration and concluded the net result of the province making a decision the way it made it was that this man lost out on, or this company owned by this one man lost out on, $10.125 million, and so that's what the province is going to pay him as a result of making a decision in that fashion.
Michael Mulligan:So I thought it was interesting to know first of all about that court and that requirement and what the implications can be. It's not a political free for all right. When you're a minister you don't get to just sort of make whatever decision, and this applies more to more than just provincial ministers. You don't get to just make whatever decision you think would be a good idea or whatever you think might be politically popular or expedient. You've got to make decisions in accordance with the law, and if you do otherwise and you cause a harm, then this could be the result, and so the public's going to have to pay the man the $10 million he lost out on because of making a decision for that reason in that way.
Adam Stirling:All right, you and I have two and a half minutes left today.
Michael Mulligan:Sure Final case is a case out of the Supreme Court of Canada and it's a case that deals with bans on publication in criminal cases.
Michael Mulligan:And the particular section at issue is section 648 of the criminal code. And that's a section that provides for a ban on publication of evidence in a criminal case which is led when the jury is not in the room. And the idea there is that you could have a judge deciding whether, for example, some piece of evidence is properly admissible, like should the jury be taking it into consideration when deciding the case. And if the that could be broadcast and published for the jury to just read about when they were out of the room, that would all be pretty well meaningless, right, you know, jury is making decisions based on all sorts of stuff that might be illegal or unreliable or whatever it might be. But the narrow issue here and I should say that ban on publication runs only until the jury goes out to deliberate, because at that point they're not going to be listening to the radio or reading the newspaper, and so you can publish and broadcast all of that information. So it's not a keep it secret, it's just don't publish it and broadcast it until the jury's off doing their business and they're not going to be influenced by that.
Michael Mulligan:The issue the Supreme Court of Canada decided was does that ban on publication, which is automatic and it occurs in every case with a jury, does that apply to things that and evidence that is led prior to the jury being picked? If that happens, you could have issues that are like legal issues that are getting sorted out before the jury's in panel, because, for example, that might mean that the case doesn't have to proceed or it might impact on how long they're going to be required for. So you'd want to decide them first, and the issue was does that ban on publication or the delay in publication impact on that kind of stuff as well? And the decision was yes, it does, and the considerations would be things like what argument would be? What are these people going to pay any attention to it if they don't even know they're on a jury yet?
Michael Mulligan:Maybe not, but the modern reality, of course, is that if something is published or broadcast, it's not going to be too hard if somebody looked for it to wind up seeing all sorts of stuff that may be unreliable or inadmissible. And we have to balance the desire for transparency in the open space the in the open court principle against the requirement for trial fairness, and so in this case, the Supreme Court of Canada found that indeed, that ban, or at least delay in publication, does extend to evidence which was led before the jury got picked in order to make sure that trials are fair. So that's the latest on section 648, which I'm sure you were tossing and turning wondering how that might play out, but that's the latest from the Supreme Court of Canada.
Adam Stirling:Michael Molligat. With Molligat Defense Lawyers, I learn new things every week. Michael, it's greatly appreciated Until next time. Thanks so much. Have a great day, all right you.