Get ready to plunge into the riveting world of legal complexities as we welcome Michael Mulligan, a seasoned barrister and Solicitor, to our podcast. Packed with insights and thought-provoking perspectives, we'll unravel the collateral consequences of committing an offence and the intricate aspects of third-party records in criminal cases. Mulligan guides us through the maze of evidence collection, especially in scenarios where the police don't possess the evidence, as in the case of a prison assault video. We also delve into the privacy concerns surrounding the people featured in such videos.
Moving on, we dive headfirst into the challenging terrain of the prison disciplinary process. Mulligan sheds light on the current system where a standard of "probably" is adopted while punishing inmates, a practice that could be at odds with the constitutional right of presumption of innocence until proven guilty. We debate the fairness of this system, especially for inmates awaiting trial while presumed innocent. To add to the mix, Mulligan paints a vivid picture of the realities of prison life, underscoring how this environment influences legal proceedings. Buckle up for this intense exploration of the legal intricacies within the prison system!
Follow this link for a transcript of the show and links to the cases discussed.
Get ready to plunge into the riveting world of legal complexities as we welcome Michael Mulligan, a seasoned barrister and Solicitor, to our podcast. Packed with insights and thought-provoking perspectives, we'll unravel the collateral consequences of committing an offence and the intricate aspects of third-party records in criminal cases. Mulligan guides us through the maze of evidence collection, especially in scenarios where the police don't possess the evidence, as in the case of a prison assault video. We also delve into the privacy concerns surrounding the people featured in such videos.
Moving on, we dive headfirst into the challenging terrain of the prison disciplinary process. Mulligan sheds light on the current system where a standard of "probably" is adopted while punishing inmates, a practice that could be at odds with the constitutional right of presumption of innocence until proven guilty. We debate the fairness of this system, especially for inmates awaiting trial while presumed innocent. To add to the mix, Mulligan paints a vivid picture of the realities of prison life, underscoring how this environment influences legal proceedings. Buckle up for this intense exploration of the legal intricacies within the prison system!
Follow this link for a transcript of the show and links to the cases discussed.
this time for our regular segment with Michael Mulligan, barrister and Solicitor. With Mulligan Defense Lawyers. It's legally speaking right now on CFAQ's Morning Michael, how we doing. Good morning, I'm doing great. Always good to be here. Some really interesting topics on the agenda. I'm looking here Video of an assault in jail in terms of evidence on a sentence appeal. How does it all fit together?
Michael Mulligan:Yeah, there are several, I think, interesting issues all bound up in that. What you've just described and this is a decision it's a decision of the BC Court of Appeal and it deals with a sentence appeal from a man who was sentenced to nine years in prison following a conviction for various serious things, including aggravated assault and kidnapping and forcible confinement, and so he received a sentence of nine years that he's appealing and the sentence appeal is scheduled to be heard next month, in December. And the particular decision that just came out dealt with an application for a copy of a video of the man being beaten in prison by some other inmates and apparently losing sight in one eye as a result of that assault that he suffered and the issues. There are several issues I think people would be interested to know about. First of all, there's a concept that can be taken into account on sentencing that is broadly referred to as the collateral consequences of somebody committing an offense right and the idea there would be, for example, let's say, somebody commits an offense and they get beaten and lose, become blind or at least blind in one eye in custody. That would be a consideration for a judge when determining what the appropriate sentence would be right. Other sort of common collateral consequences might include things like a person could be fired from their job as a result of being charged, or lose their home. Things like that, as one would hope and expect, would at least be thought about by a judge when deciding what the appropriate sentence was for somebody, and so that's why the attack in prison could be relevant on the sentence appeal right, because that could be a collateral consequence that has happened to the person Fascinating.
Michael Mulligan:The next concept, which is an important one, or interesting one, is the idea of what's referred to as a third party record, and the way that works is that in a criminal case, an accused person is entitled to what's referred to as disclosure material, which is to say the crown. When they're prosecuting somebody is required to give to the person or their lawyer a copy of all of the evidence that the police have collected. Right, which sort of makes sense from a fairness perspective. It actually wasn't always that way. That only became a legal requirement as a result of the charter. But there's no obligation now that crown provide all of the evidence evidence both that might show the person's guilty, but also evidence that might show the person's not guilty. Interestingly, that used to be sort of variable how that would occur, but now that's a clear requirement. But that requirement only applies to evidence that the police or crown council have right.
Michael Mulligan:It doesn't oblige the police to go out and like collect other evidence, right, even though it might exist right, like, let's say, there was a Assault and a video of taping, video recording of it. The police aren't obliged to go get the video recording. They might just say sorry, we're too busy for it. We're not, and then an accused person wouldn't have any right to it because the police don't have it right. You only have a right to what they actually have interesting, and sometimes there can be some ambiguity like well, hold on, you know that in this case what was being asked for was a Video recording. It was like a three or four minute from various different angles Of the man being beaten in prison. No correctional staff witnessed the beating, but they had described it based on the video recording. So they knew that there was video recordings of it. But the man in his lawyer didn't have the video recordings and the reason that can be sort of a gray zone, right, is it a matter of? Well, does the crown have that? Is it something they have that they just need to Turn over because it's held by the provincial correctional people, right? So in some broadspent sense you might say, well, they've got it to give it to me. You can't just keep that.
Michael Mulligan:But here there was an agreement that that was a third party record and that would be, for example, you know, let's say there is a, a crime committed and let's say it's not a government thing, let's say it's just somebody has a videotape of it on their security system from their home, right. And let's say an accused person wants that recording because they say, hey, this will show that I was defending myself, or that it wasn't me or or whatever, right? And in that case there has to be an application made to get Something that a third party has, because the police don't have it, the crown doesn't have it, it's, you know, mrs Smith, who's got the video recording, right. And so here there was an agreement that this was a third party record, even though it was something in possession of the correctional facility. And so then the remaining part of the test to start the process of getting a third party record Is that the judge needs to be persuaded. The third party record is likely relevant right, because you don't want sort of fishing expeditions saying, look, I just want everyone's doorbell camera for the whole neighborhood or something right. You have to show some basis that it would be Likely relevant before a judge is going to order the third party to turn it over so that a judge can assess Whether it's in fact relevant.
Michael Mulligan:And then the final consideration that applied here is was a concern about the privacy interests of the of the people on the video. So, for example, uh, the inmates that may have committed this assault in custody and the crown had expressed a concern about, you know, they wouldn't want to have them identified. Maybe there could be some retribution in jail, that kind of thing. Um, and so the uh judge, or the judge from the court of appeal here, ordered that the correctional facility produced two copies of it one, uh, an unredacted copy for the judges to look at, and a second copy that would have the identity of the presumably people that beat this man pixelated, um, to protect their privacy.
Michael Mulligan:Uh, and so, on that basis, uh, the court of appeal judge has ordered that, at least for that first stage likely relevance, that threshold has been met because it's clear there is a video of this, because the staff looked at it and described it and Uh, it could have relevance because if the man was assaulted in custody and lost vision in one eye, that would be a collateral consequence that the judges might want to take into account or might choose to take into account when determining whether the nine year jail sentence was unfit or not.
Michael Mulligan:And so, on that basis, uh the video will be uh ordered to be provided uh to the court and then a judge can review it and then arguments made about uh providing it to the uh the man or or his uh, realistically, his uh lawyer. Um, so those are the concepts. They include collateral consequences, um, third party uh records uh and uh how that might fit into a uh into a sentence appeal. The other thing I think I should probably mention is that some people may be wondering how is it that somebody could be assaulted in a jail and have nobody there to witness it? Right, no staff members.
Michael Mulligan:Yeah, uh, jails are dangerous places. Uh, we had a case a number of years ago, or firm did, which involved uh man who uh preempt, preemptive way, uh hit another inmate with a uh wait, uh uh device, uh in the uh gym and the evidence from the correctional staff was that they don't enter the gym is too dangerous and they have no way to protect it. Inmate, um, if uh they are going to be potentially the subject of a uh of an assault, wow, and all of that played into uh whether doing something proactively might be uh justified in prison. Uh, because the staff don't have any realistic way to stop uh an assault from occurring if other people are uh inclined to perpetrate one, no sort of. At uh VARCC, the Wilkinson road jail, you know, you have a circumstance where you could have 20, you have 20 plus inmates in a unit and you have one unarmed uh jail guard sitting there, right, yeah, and so if somebody's inclined to do something, the, there is no uh realistic way that that single uh unarmed person is going to be in any position to prevent it. And there are some places in a jail including at that time at Wilkinson road jail, the weight room, where the staff wouldn't even enter uh out of uh uh concern for their physical safety, wow, and so they have video recordings of things.
Michael Mulligan:But that's the uh, that's the actual reality in jail. It is a very dangerous uh uh place and I must say as well for people that work there. A very dangerous place for people to uh work, right, they, they have the staff. They're intentionally unarmed so that they couldn't have their. You know, if they had a sidearm or something, they would be in jeopardy of having that taken from them Uh, and you can imagine what that would produce.
Michael Mulligan:And so you have a staff, often alone uh, guarding a much greater number of people in an unarmed way, and what they have is a little device of it. If they got hit the knock to the ground, it's supposed to set off an alarm or they could push a button like a panic button, but otherwise they're sitting in there. So uh consider that uh in terms of uh challenging uh jobs. Uh, those people uh, I think, worked very hard in very difficult uh circumstances, with a whole bunch of people that are very unhappy to be there Uh, and so uh not easy and not safe for uh anyone involved, uh, and so that's uh how that may play out in this particular sentence appeal. Well, we can see uh what happens next month Uh, but at least the uh judges will be able to see uh the attack on this man and take that into account when determining whether the nine year sentence was appropriate.
Adam Stirling:All right, we're going to take a quick break here at CFAQ stand seven, michael Molligan with legally speaking will continue right after this. Legally speaking continues on CFAQ stand seven with Michael Molligan from Molligan Defense Lawyers. Michael, before the break we were discussing how the exercise room in a prison can be among the most dangerous places, in some cases so dangerous that prison staff and guards will not venture in there, nor can they guarantee the safety of inmates who choose to go into those spaces. This, of course, gives rise to an interesting question what punishment is sufficient to deter poor behavior for someone who is already in prison and perhaps has the prospect of staying there a long time already? How does that work?
Michael Mulligan:Uh well, the uh. There's a disciplinary process in the prison, and how that works is the subject of the next uh case. Uh and the essentially uh. If somebody in inmate is alleged to have done something contrary to the rules in the jail, uh, the, the, the, the, the, the. They have sort of a mini hearing to determine whether the person should be punished, and the punishment uh will, uh can include putting the person into solitary confinement, and sometimes they called the hole Um, and that can of course be a very serious long-term consequences when you deprive somebody of sort of human contact for an extended period of time.
Michael Mulligan:And there is a case now dealing with the issue of whether it's appropriate to have that decision made, whether an inmate can be disciplined, including putting them in solitary confinement, on a standard of whether they probably did something wrong, because that's how the system currently works. The standard, of course, in a criminal case is whether the crown has proven that somebody did something beyond a reasonable doubt. It's quite a high threshold before we put people in prison or convict them of crimes. And that lower standard of probably a balance of probabilities is the standard that would apply if you were, for example, suing somebody for money, right? Do they probably owe you money? Do they probably apply a lower threshold to that? But the provincial jails use that same lower standard of probably when deciding whether to punish an inmate, and so there's a challenge going on about whether that's constitutionally permissible, and there are two grounds. There are two constitutional grounds that are referred to in that case. One is that there's a specific provision under section 11D of the charter, which sets out various rights in criminal and penal matters, which provides that to be a person has a constitutional right to be presumed innocent until proven guilty according to law, in a fair and public hearing by an independent and impartial tribunal, which would seem to answer it. But, as everything in this world, there's subtlety, and so there's some doubt, based on previous cases, about whether a prison disciplinary hearing is the kind of thing which would be a the kind of thing covered by 11D, and the province was arguing that this claim shouldn't be allowed to proceed at all because it's doomed to fail, because this isn't the sort of thing that that section is intended to imply to.
Michael Mulligan:However, the inmate and the group bringing the challenge here is relying not only on that section but the broader principles in terms of fundamental justice that are set out in section seven of the charter, which provides that everyone has the right to life, liberty and the security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. And so the alternative argument being made is that that kind of punishment based on a standard of probably doesn't meet that constitutional threshold either. And one of the things which is being relied upon in this case and is being brought by the West Coast Prison Justice Society and a particular inmate, is that all of this, that system, which is to say punishing people on a standard of they probably did something, even if maybe they didn't, applies not only to people who are serving a sentence, but also applies to inmates who are there on remand, who are were denied bail and who are presumed innocent of committing any crime. And so you could have a person who's presumed to be innocent waiting in jail for their trial and, on a standard of probably they did something, but maybe they didn't, they could be put into solitary confinement as a punishment. And so that's a core argument that's being made. And so, on this recent application, it was an application by the province to try to strike out this claim, saying this is hopeless, it can never succeed. That failed, and the judge hearing that application found that. You know well the some of the arguments being made here were novel, right, they haven't previously been decided. He was, you see, I was not persuaded that it was doomed to fail, and so we don't have a final answer on it, but we do have an answer that this is at least arguable whether it's constitutionally permissible to punish somebody on a standard of probably.
Michael Mulligan:And I suppose the other thing I should say is that when you're having a legal argument about constitutionality, that's not an argument about whether something is good, right, reasonable or fair right. It's an argument about whether it's legally allowed. And so I suppose the other thing I would say about all of this is that perhaps the province should give some consideration, quite apart from the constitutional test, which is is it possible, can you do this? As to whether it's fair right. Should you punish somebody, potentially in a very severe way, if you're only kind of think they probably did something, even though you agree that they might not have right? Is that appropriate, which really should be the test in life, right? Not? Can we do this? The test should be should we do this right.
Michael Mulligan:You know, the analogy I've used before is setting this, and this is sort of a thing that's from time to time caused me great consternation when you hear political debates about criminal justice matters, where often the language turns into is this constitutionally permissible, rather than is this a good idea or wise or fair right. Interesting, you know, setting something, doing something, because you can legally do it. The analogy I've used is it's like setting the recommended dose for medication by figuring out what dose would kill the patient and then recommending you take just a little less than that. That shouldn't be how you approach things. You should always approach it from the point of view of what's the appropriate thing, not what can we get away with. And so that's the issue, and we'll wait and see what comes of it. But the province didn't at least succeed in getting it struck out as having no hope of success.
Adam Stirling:All right, we have just over four minutes remaining and a court of appeal overturning an interlocutory injunction. A lot of complicated stuff there, but I see an online respondent about a pet food store. What is this?
Michael Mulligan:That is a mouthful. The background of this is that a woman who was employed at a pet food store over in the lower mainland for about a month quit her job and then sometimes apparently on good terms, but then sometime later started posting things online claiming that the pet shop was I think language was things like disgusting, and then alleging that they had had a power outage and that some of the pet food had thought and been refrozen again. She was sort of seeing disparaging things about the business space and more than that, and so she was. She got a cease and desist order from the business. The lawyer for the business stopped doing that it's the famatory to which she continued doing it and then got sued for defamation. And the next step and the woman kept posting things online and so the business went to court and sought an injunction to have her stop doing that, and the judge that originally heard it applied a test which is well known from a case called RJR McDonald.
Michael Mulligan:It's a case that deals with when can you generally get an injunction before you've had a trial to make one side to the other stop doing something right, and generally there's a three part test. Is there a serious issue to be tried. Will there be irreparable harm if there isn't an order to stop doing it right away and then a balance of convenience sort of you know who would be more put out by in order to stop doing something? And on that basis, the judge who originally heard the application ordered this woman to stop posting anything about this pet food store. That got appealed and the court of appeal clarified that that general test, which is applies in almost every other circumstance for a internment junction, like in order to stop doing things before we have the trial, is not the test in a case for defamation, and the reason for that is that there's a balancing right, there is this balancing about not wanting harm and the balance of convenience, but there's also a high, high importance we place on freedom of speech, yes, and so you don't want to have a circumstance where somebody who's claiming hey, that's defamatory, can get an order that muzzles the other person from saying anything at all, and so there's a higher threshold.
Michael Mulligan:The court has now clarified when you are applying for an injunction in a defamation case and the test starts with the person asking for the injunction has to establish that the things the person was saying are manifestly defamatory, which means that a jury not finding them to be defamatory would be perverse, right? So it has to be very clearly defamatory, not just well, arguably so. Yes, and on that part of the test, the court of appeal, on this appeal, the internment junction, said they couldn't find beyond doubt that, for example, no meat thawed during a power outage and was refrozen. Maybe that's so, maybe it's not, but it's not so clear that it would be perverse for somebody to say, yeah, this woman was saying the truth, which you're permitted to do right.
Michael Mulligan:Truth, justification and fair comment are all defenses to claims for defamation, and so the court of appeal found the judge who heard the original application applied what is a common standard and would apply in virtually every other type of claim, but not in defamation claims.
Michael Mulligan:And so there's this higher threshold, which comes from the fact that we don't want a circumstance where you can have somebody effectively muzzled no pun intended in the pet food case for statements which may or may not, at the end of the day, be defamatory, because they may or may not be true, for example. And so the court of appeal has overturned that, and the pet food store does not get their order and the case will continue to trial. The thing that might deter the woman from continuing to say things that are, if they are, false is that, of course, there's already defamation claim going and she could wind up with a big bill if she was unsuccessful, but the pet food store won't be able to get the original order, which was stopping her from saying anything at all online, which, of course, is also very broad. You couldn't even say good things about the pet food store. No muzzling in the pet food case, and we'll. We can see the outcome.
Adam Stirling:In the second half of our second hour every Thursday on CFAQs, it's, legally speaking, with Michael Mulligan. From all good defense lawyers, michael, pleasure as always, until next week. Thanks so much. Have a great day, you too. Bye now.