Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
The BC Heroin Treatment Act and Delays in Civil Cases
Join us this week where we'll be opening the vault of Canada's legislative past with legal expert Michael Mulligan. Trust us, you won't want to miss this deep dive into the controversial British Columbia Heroin Treatment Act of 1979. Together, we'll unravel the context of the Opioid Crisis of the late 70s and today, investigating the eerily similar circumstances and sobering statistics of both times.
In the episode, we'll have a healthy debate about the implications of the Heroin Treatment Act. By dissecting the act, we'll see the jurisdictional challenges it presented and the public's resistance against mandatory treatment. Not to mention the fascinating parallels between the current Mental Health Act and the Heroin Treatment Act.
But hold your horses; we won't stop there! We'll be shifting gears to discuss the impact of prolonged delays in civil cases, specifically centred around employment disputes. We'll examine two unique cases, both revolving around dismissed employees. You'll hear about their fight for severance pay under the Employment Standards Act and the repercussions of these extended delays on their case outcomes. Whether you're a history aficionado or a legal enthusiast, you're in for an insightful ride as we navigate through Canadian legal history and today's legal hurdles.
Follow this link for a transcript of the show and links to the cases discussed.
time at this moment, though, for legally speaking with Michael Molligan, barrister and solicitor with Mulligan defense lawyers.
Michael Mulligan:Morning, michael, how we doing I'm doing great, you know, the only trouble is once you climb out from underneath your desk.
Adam Stirling:The world's still there, that's oh, it depends on how much society actually collapses. Do we have to go to work or do we have some time to rest?
Michael Mulligan:I must say that's right up there with if you ever go to the deep and bunker outside of Ottawa, who was designed for government entities in the event of a nuclear attack. One of the disappointing tiny offices that they decided was critically important in the event of a devastating nuclear war was to have an office dedicated to CMHC mortgages. So that's right. Even if the Canada was a deficit so it's dissipated by nuclear attack there would be three people with a computer and a telephone ready to phone you up and ask you about your mortgage payment. So you know even one of the very few benefits of devastating nuclear attack that you might think would accrue to you not even to pay your mortgage. Don't count on it. They were ready to keep going in the event of the worst case scenario.
Adam Stirling:I was going to say might as well take my mortgage debt and etch it on the golden disc on the Voyager spacecraft, so, millions of years from now, lost civilizations will be able to find it. When we take a look at the stories of the agenda today, one of the things that I have found very interesting the segments that we've done, Michael is you've reminded us about the jurisprudence that existed in Canada decades ago, pre-charter, that allowed for things that nowadays, of course, we would not permit. And there's also some curious examples of how the social problems that we grapple with today have been dealt with or, in some cases, not dealt with, in the past. You have an interesting example off the top.
Michael Mulligan:You're exactly right. And when I reread this piece of legislation it caused me to think you know, gee whiz, is everything old, new again. And the particular piece of legislation that caught my historical legal eye is a British Columbia Act called the British Columbia Heroin Treatment Act, and it's an act which came into force in 1979. And before it came into force there was a interesting article in the New York Times talking about British Columbia's bold decision to make treatment for heroin compulsory, hoping to end Canada's worst drug problem. And that story indicated that British Columbia then, in 1970, 1978, before the legislation was passed, estimated there were 10,000 heroin users, which represented 60% of the heroin users in Canada living in British Columbia. And they described the British Columbia, described the problem, including a large number of young drifters with the language used then, attracted to the mild climate and easy life in British Columbia. And the story went on to talk about how the government was concerned about crime, in the case in Vancouver, particularly violent crime which had risen markedly uh and which the police uh attributed 60% of that violent crime to be drug related. Uh, so many of those uh things probably could be written in the story today, although they rather suspect the number of 10,000, uh would be uh completely inadequate to estimate the number of people who were now dealing with opioid addictions in British Columbia uh based on things such as the number of people that are dying of that uh each and every day. And so the British Columbia uh response to that in 1979 was to pass that act.
Michael Mulligan:I mentioned the heroin treatment act, and the heroin treatment act has some echoes of the uh current version of the mental health act we have that would permit somebody to be involuntarily committed for treatment if they're uh uh suffering from a mental illness and their danger to themselves or others Uh. But this particular act uh allowed uh a police officer who had reasonable grounds to believe that someone was dependent on a narcotic, and narcotic was defined to be heroin, opium uh, opioids or other substances like those with similar properties, and it would permit a police officer to serve somebody with a notice that they were intended. Somebody were required to attend between 24 and 48 hours later to a coordination center Uh, and if they didn't attend so there could be an application to a judge for a warrant to have them arrested and brought to a coordination center. And when an individual would attend the coordination center, uh, there was a requirement there be an assessment done to determine whether they were uh in fact dependent on a narcotic, and that could include blood tests, urine tests, a psychiatric assessment. And there was a requirement that within 60 hours of the person attending there and they could be held for up to 72 hours for this kind of assessment, there would be a report prepared uh, and then a panel would an evaluation panel would determine whether the person uh was indeed uh dependent on a narcotic. Um, if they were, the choice was either they could agree to stay for treatment and if they didn't agree uh, then there could be an application made to a judge in court to determine whether the person should be committed for treatment.
Michael Mulligan:If they were committed for treatment uh, the act provided that the treatment program would last for three consecutive years. That came from an examination of uh a success or lack thereof of a compulsory treatment program in Japan, where they determined that the treatment program wasn't long enough. And so the BC Heroin Treatment Act had a period of three years for treatment, and it provided that during those three years a person could be kept in a treatment center. So closed, secure treatment uh for not more than six consecutive months or a total of one year, subject to an application to a board of review. Uh, that could order a person to continue uh secure treatment for longer than that. Um, the government indicated that they were going to build a hospital, secure hospital facility with 150 beds. Uh, that seems a little small, but that was a plan. Uh, with the idea that many people could be treated on an outpatient basis. Uh, but for people that required secure treatment, uh, that was ordered by a judge under this act. Uh, they would have a secure facility for treatment for? Uh somebody who's addicted to, then, heroin or other opioids.
Michael Mulligan:Um, what then happened is that there was a court challenge to whether, uh, this scheme was constitutional. Uh, and, given the pre-charter timing, the court challenge was on the basis of a division of powers argument, and the BC Civil Liberties Association funded a uh test case, and their argument was uh, that dealing with narcotics was a criminal law matter and that was federal, and so the province had no jurisdiction to do this. Hmm, and so they brought a challenge in court and at the trial level they succeeded and the judge Supreme Court judge found that this was outside of the constitutional jurisdiction of the province. Um, that put up the brakes on all of this. Uh, there was an appeal from that to the BC court of appeal and the province succeeded in a five zero decision. The court of appeal found that the BC Heroin Treatment Act was constitutional. Uh, that was then appealed to the Supreme Court of Canada. And again, the Supreme Court of Canada found that the BC Heroin Treatment Act was constitutional. Uh, that decision out of the Supreme Court of Canada, uh, finally came in 1982. So just a few years later. So that's the final word on whether the province could, at least from a jurisdictional division of powers basis, do this. So this Supreme Court of Candidate said yes, they could.
Michael Mulligan:But by that point several things have happened. First of all, time had gone by. There had been some delay in all of this. The Minister of Health had changed. There was public pushback about whether this was fair, whether we should be requiring people to attend compulsory treatment. The Civil Liberties Association, others, were opposed to it. So people should be able to choose whether they get treatment or not and if so, what kind of treatment they would get. And the hospital didn't get built. And then by 1985, the legislation got repealed. And so that is the history of in a British Columbia. We've been here, right. We've been here at a point where there was concern about drifters moving to British Columbia, a large number of them using drugs, violence being the result of that, and the legislation was actually passed with this entire scheme in place, with a review process and appeal process and process to appeal a decision to the Court of Appeal. We had the whole thing in place, but it got derailed initially by that first court decision finding that it wasn't constitutional, and then things just went off the rails and things moved on and it got repealed.
Michael Mulligan:And, as we talked about before, we do have currently legislation in place. It's a mental health legislation which allows for the involuntary treatment of somebody who is a danger to themselves or others as a result of a mental disorder, and so there certainly could be an argument that we currently have would permit this. But really, the critical point here, the thing that really is needed, is that hospital. They talked about the place for treatment, and if you have a place like that built, of course, to my mind, the first place to start would be who wants treatment? Put your hand up, come here, it's available, right? We don't need to worry about whether we are compelling people to get treatment until we start with all the people that want treatment and are putting up their hands, which don't have a place to go currently, that should be immediately available.
Michael Mulligan:And so, whatever somebody's view of whether this act was a good idea or whether there should be a 2024 version of the then Heroin Treatment Act for 1979, or whether the mental health legislation should be used and there are reasonable debates to be had about that right Should somebody be compelled to do that On the other hand, maybe somebody gets to a certain point in addiction where they're unable to make a decision about something that has a very high probability of killing them eventually, and maybe there is an argument for, in some cases, compelled treatment. And that's a good debate to have and we should have it. We've had it before. But what we should start building, it seems to me, is that maybe the 150 beds are a little small, but a good start.
Michael Mulligan:Start building and we proposed this back in 1979, 1978, get going and once we have something in place where there will be a place to go, we can then have a good discussion about how should we fill that, and I rather suspect, given the large number of people that are dying, that at least, whatever structure is built, initially you're going to fill it by just put your hands up or show up, and we're ready to give you a hand, to stop doing what you're doing.
Michael Mulligan:And if there's any space left, we can then have the debate about whether there should be some process in place, whether this one or something else, to get people in there who can't make that decision for themselves and putting themselves in their lives in grave jeopardy. And none of this is new, right back to 1978. Right, violence on the street, drug addiction, and what do we do about it? We've been struggling with it since then and the real shame in all of that the legal machinations, the history of the act and the politics behind it is the hospital Get building. So that's the BC Heroic Treatment Act. We've been here before.
Adam Stirling:Indeed, we can argue over thresholds for non-voluntary treatment, but if we don't have anywhere to actually administer that treatment, it's ultimately moot.
Michael Mulligan:That's right. That's the point. We currently have that mental health act. The police could theoretically pick somebody up and say, look, you appear to be suffering from a mental disorder. You're a danger to yourself. Look, we found you passed out head down on Pandora Avenue on the sidewalk. You know you've been revived several times by you know naloxone or something. If that doesn't happen, you're going to die. If you're looking at the threshold, do you have a mental disorder and are you a danger to yourself?
Michael Mulligan:It seems to me there's a compelling argument to be made for somebody who's in that kind of a cycle, being using and repeatedly revived, after you know, avoiding death that it would meet the criteria for even the legislation we have, the general legislation we have in place. But what is the doctor supposed to do, right, when you sort of the police officer brings the person to the hospital? Here we have this person. Here's the history. Here we're looking to help. If they don't have a place to put the person to help them, what are they supposed to do?
Michael Mulligan:And so that seems to me, regardless of the legitimate debate about whether we should compel somebody to get the help, get working on the place to get the help, because there's just so many people involved and what's really?
Michael Mulligan:Is that obviously a grave danger to the people who are using it, using these substances themselves, but, just like it was in 1978, there's all kinds of you know violence and crime and social disorder that flows from people who are spending every waking moment, you know, shoplifting, breaking into cars and committing minor offenses in order to get money to buy drugs which then may kill them. And so we really need to get on it, because it has all of those knock-on effects on everyone, not only people who are addicted to these things, but all the people who, you know, deal with the effects of it, all the small business owners, downtown people who are walking around and have random things happen to them. Cars are being broken into. It's a serious issue and we should address it, and there is a path to address it, but it requires, as a start, a place for the treatment to be provided, and then we can have a good debate about who should get the spaces, but for heaven's sake, let's get the spaces built.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Legally speaking, we'll take our first break here. We will be back in just a moment. Legally speaking continues here on CFax 1070 with Michael Mulligan from Mulligan Defense Lawyers. Michael, we have, let's see, just over eight minutes remaining and a couple of stories to get through, but they took a lot more than eight minutes to come to the point where we can describe them.
Michael Mulligan:That's right. Both of these stories deal with the issue of delay and moving a civil case forward. And what's going on there is that, unlike in a criminal case where somebody is being prosecuted for something, where there's always a next court date because, frankly, it's bad news for those people involved and if you didn't have something to kind of drive the process forward, it might not move along, but in a civil case where you're suing somebody for money, it kind of depends on the parties to move the case along, like schedule a date for trial or schedule a date to do something right, and if the private people don't do anything, it doesn't go anywhere right. And so both these cases involved should the case be dismissed because of just how slowly things moved. And the first case is an interesting fact pattern. It's a fellow who worked for Great Canadian Casinos and he'd worked there for 25 years and eventually he worked his way up to a as a security manager and back in 2015, he was fired without cause and that's important and it was agreed by the casino. They terminated him for some reason not to do with his performance and they paid him at the time eight week severance, which is what's required under the Employment Standards Act.
Michael Mulligan:But I should pause there to say that the Employment Standards Act is not the only basis upon which somebody might be entitled to payment in lieu of notice if they're fired without cause. There's a common law concept that that would be a part of an employment contract and often the amount of notice a person would be entitled to would be longer than what's required by the Employment Standards Act. And that can particularly be the case for somebody who's like a very long-term employee, and particularly so where somebody's in a very senior, specialized position. And the concept there is that you know, if you had a job which was not a very senior position let's say you had a job working at a McDonald's restaurant and you were fired without cause and given notice, you would have an easier time finding an equivalent job at another fast food restaurant, for example. Right, then you might have. If you were the CEO of McDonald's and got fired, you might say, well, there's just not many other missions like that, right. The idea is that you might be required more time to go find an equivalent job. So that was the basis for the claim.
Michael Mulligan:Trouble was this fellow who was fired about a year or so after he was fired was diagnosed with ALS and then he passed away in 2018. And then nothing really moved. He had an executor I think it was his sister who wanted the thing to proceed, but the lawyer who was originally dealing with the case just didn't do anything for like six years, and so the claim didn't move along. Now, the other interesting thing is that this kind of a claim can proceed even if the person's passed away, right, that doesn't end the responsibility to have paid the severance at the time or pay in lieu of notice, and so the lawyer who was responsible for it took the blame. He said look, I didn't move this thing forward, it was my fault, I should have done it. You know, probably a factor being the client was no longer alive, but nonetheless, the lawyer said it was his fault, he should have moved it along, and, and so the court had to sort out, on an application by the casino to get the case dismissed for what's called want of prosecution, whether that should happen or not, and the, as the court pointed out, dismissing something for want of prosecution is described as a draconian remedy, because it means that even if you've got a good claim, it's not going to get heard because you didn't get going fast enough, right. But the flip side of it is that the court rules are intended to produce, like just and speedy Legal terms and an inexpensive determination of something on its merits, yes, and so the court had to wear way. Well, what is this right? And the judge, hearing that application to dismiss it said well, look, this is really close to the line, being an inexcusable amount of delay, despite the fact that the lawyer is sort of falling on his sword I think it's my fault, right. And it turned on ultimately a weighing of whether there was prejudice To the casino, like whether they would have had a harder time defending their case Because of the delay, and one of their arguments was well, look, the man's passed away.
Michael Mulligan:So we wouldn't be able to ask him questions about things like what efforts did he make to mitigate his loss, which is a requirement? Yeah, somebody's fired from a job. They have to try to find another job. You can't just, you know, sit on your couch and smoke pot and hope you're gonna succeed in making a claim For being fired. Right, you've got to try. And if you don't get something, then you could. Your damages would be. You know what you lost out on when you weren't able to find an equivalent job.
Michael Mulligan:Now, that was a compelling argument, but ultimately this was, I think, insightful. The judge found, look, this man passed away within a year and a half of the claim being filed, and so, even if the thing went along very speedily, it's very unlikely there would have been a trial before he passed away. Anyways, and so well, there is a factor, and well you they may be some lost opportunity to ask him questions about his efforts to mitigate. It wasn't caused by the six-year delay, it was just an unfortunate fact. And the judge also found that they this was a factor in sort of the interests of justice, that it was a, on the face of it, very strong claim. Right, because there are other cases, for, like managers with, you know, long experience, where they've wound up with much more severance than the eight weeks required by the act, and so those two things weighed in favor, and ultimately the court decided To allow the claim to continue, and so that was the decision in that case.
Michael Mulligan:And there was another case, which was just, yeah, released a few days after that, that involved an even longer delay, and this was a case where A company that had a contract to maintain parks on Vancouver Island was suing the province and over a claim, a breach of contract, and claiming that they weren't acting in good faith In renewing this contract. And that case involved a delay that was even longer than the six-year delay. This was a delay of not moving the case forward for 14 years. And the province was saying, look, that's just excessive, that you shouldn't be allowed to now continue the case. And again the judge had to weigh the desire to get things done promptly with largely the issue of prejudice Right, because the issue for the province was, hey, we can't defend this case.
Michael Mulligan:And the province had an affidavit saying look, the people who negotiated the contract have all retired. They retired in various years 2004, 2006, 9, 11, 14 and 16. They've all retired, yeah, but that didn't do it, interestingly. And the judge said, look, I appreciate they've all retired, but that doesn't mean they're not available as witnesses. The fact they don't work for you doesn't mean they can't come and testify. And so the judge said, again, this is very close to the line, but and it could the analysis could change if, like, important evidence was no longer available because one of them, for example, passed away and you couldn't properly defend yourself.
Michael Mulligan:But the judge found that, despite the very, very, very long delay and again described as close to the line the judge decided that at this point the case would be allowed to proceed, which is really interesting.
Michael Mulligan:That's a very long delay, right, yeah? And the notable thing is that the we have a limitation period for starting actions. Yes, but that limitation period is for when you have to start the action, not when you have to finish it. Yeah, so once something gets going, even if there's long delay, these are examples of, I must say, the 14 year one is about as long as I could possibly fathom in terms of not doing anything and still being allowed to go ahead. But the judge said there well, look, the court deals with old, historic cases criminal and civil and judges can account for that, and there's no evidence here. These people aren't available witnesses just because they retired, and so it's allowed to continue, which is really interesting and perhaps an example of why you can only get it stayed for delay if it's going to prejudice somebody, because it is a draconian remedy. So both of these will be allowed, at least for the moment, to continue.
Adam Stirling:Michael Mulligan with Mulligan offense lawyers, legally speaking. Thank you, Michael, as always. Thanks so much. Have a great day.