The Presumption of Destruction, Small Airline Seats, and Character Evidence

Unlock the secrets of safeguarding your last wishes with a captivating narrative from Quadra Island, where an elderly lady's lost will sets off a legal firestorm over the presumption of destruction. As I narrate this tale of vanished legacies, you'll discover the critical importance of not only crafting a meticulous will but also ensuring its safekeeping. This episode plunges into the murky waters of estate law, unravelling a mystery that serves as a stark reminder: the absence of a will can unleash Pandora's box of legal quandaries.

Our discussion takes to the skies with the ongoing saga of airlines wrestling with the responsibility of accommodating passengers with disabilities without burdening them with extra fees. WestJet's legal turbulence illustrates a broader challenge for the airline industry: who should pay when a passenger is too large to fit in an economy seat or if they require an assistant to fly with them?  And with Michael  Mulligan of Mulligan Defence Lawyers providing expert insights, we're armed with the knowledge to navigate these legal crosswinds with finesse.

Finally, we scrutinize the often misunderstood role of character evidence in criminal trials and its potential to make or break a case. Through a real-world example, we dissect how a courtroom misinterpretation led to an unjust conviction, drawing attention to the appellate court's role in correcting such mistakes. This episode not only sheds light on the intricacies of trial and appellate processes, but it also underscores the importance of getting it right the first time—because justice should be more than just an assumption. Join us for a journey through the landscape of law, where every detail holds the power to tip the scales.

Follow this link for a transcript of the show and links to the cases discussed.   

Transcript

Adam Stirling: 0:00

time for a regular segment, legally speaking, with michael maligan, barrister and solicitor, with maligan defense lawyers. Morning, michael, how we do it. They had to worry I'm doing great those good to be here some interesting things on the agenda today. We've uh had a lot of discussions in the past about willson estates another interesting example of the top indeed, this one's got a good name as well.

Michael Mulligan: 0:21

It involves the cut, the presumption of destruction. But there's a good legal concept for you. And but the presumption of destruction uh actually comes from a uh case dating all the way back to eighteen thirty six, and it's still good law in british columbia. Uh adheres to how it was recently applied a very interesting fact pattern. The case involves a uh uh lady who is eighty one years of age. Uh, she lived alone. Uh, she had a uh home on quadra island. Uh, she did not have any children, she did not have any surviving siblings and she'd been divorced in the nineteen, eighty. Okay, that's the fact that it's okay, uh and uh. She sadly, she passed away. Uh and uh. The issue became what about her estate? Uh, and the reason that was uh an interesting, controversial issue uh is that uh family members were aware that she had nieces and nephews and they were aware that she had created a will uh all the way back in two thousand and one and in that will she left all of her estate to one of her nieces, uh, and so, naturally, that uh created issue about okay, where's the will and what does it say and what should be done uh and uh.

Michael Mulligan: 1:39

When she passed away, uh, some of the extended family members uh went to her home on quadra island uh to look to see if they could find the will. Uh, one of the sad notes in here it's not really uh, uh detailed in this case was that they found that, uh, her dog and two cats have been left alone in the house since she was hospitalized several weeks earlier, so hopefully somebody was taking care of them. Uh, it's all the family members. They looked around the house, they look to see if they could find a will and they couldn't find any. Uh, couldn't find any will. They did find other things. They found bills, insurance forms, uh. They profound uh a prepaid funeral service arrangement, which is interesting. They went through a filing cabinet but they couldn't find a will. Uh.

Michael Mulligan: 2:26

So the next step and people should know about this too we have in british clumbia a wills registry, and the wills registry allows either a lawyer or notary that prepares a will, or indeed and this is quite interesting anyone who's uh, both or either sixteen years of age and with mental capacity, or any age, and in the canadian forces on active duty.

Michael Mulligan: 2:50

Uh, that's troublesome if we have fifteen year old, so are younger and active duty on the for the canadian forces, but that's provided for, yeah, and so the uh wills registry would allow uh anyone in either those categories to uh file notice of the fact that there is a will. They don't actually like hold the will, but they would have information like the date of birth when the will was entered into and where the will is right, which is that's pretty important right. So I don't think you like a it, so that my lawyer's office or is in my family cabinet or where they might be in the, when they looked in the will's registry there was a notice filed about the will being kept in a Royal Bank safety deposit box up in Campbell River at Shoppers Row, and so they went to look. That safety deposit box didn't exist. Interesting turn of events Because they were able to.

Adam Stirling: 3:44

It never existed or it didn't exist. I'm curious, it didn't exist.

Michael Mulligan: 3:48

Okay, that's interesting. I've actually had a sort of experienced even with one of these things where a safety deposit box was moved from one bank to another when a bank branch moved. But in any case, here the evidence was it didn't exist, so they didn't. But they were able to track down the notary who had prepared the will. And indeed the notary had a copy of the will. He kept it An unsigned copy, but a copy nonetheless. Now here's where that ties in with the presumption of destruction. The notary was able to say I gave the original signed will which left everything to the one niece, to the person who made it, the woman who made the will, she walked out with it. That's important, okay, okay. Further efforts are made to look for the will. They couldn't find it.

Michael Mulligan: 4:38

A bunch of the family members went back to Quadra Island. Interestingly, they started going through books and magazines and this was an odd piece of evidence. They concluded that they needed to burn some of the books and magazines because there wasn't garbage or recycling on the island. It was sort of a perhaps suspicious state of affairs, but the evidence was that they had looked through the things, like shaken them or flipped through them before burning them. So it was possible that the will was shoved into a book or a magazine. They got inadvertently burned and indeed one book in the house did have some legal documents in it. So there was a specter of that.

Michael Mulligan: 5:17

But here's what that dog, here's what that presumption of destruction really means.

Michael Mulligan: 5:23

If you have a circumstance where there's evidence that the person who made the will had the will that's important Like they physically had possession of it, and then it can't be located, you can draw the presumption would say that they would presume the person destroyed the will so that it wouldn't be effective, right, and that's an interesting thing.

Michael Mulligan: 5:48

You just sort of think about that. Well, I guess the, as the judge pointed out, that principle, which is all the way back there, 1836, or that presumption it sort of ties in with and this is one of the beautiful things about the law is that it generally sort of accords with common sense. And here that presumption is premised on, as the judge pointed out, the common sense presumption that if somebody has a will, they generally want it to be effective, like they want their wishes to be carried out, right, so you generally, if you have a will, don't make a will and then go and like hide it somewhere because that's not going to be very effective, right, if people can't find the thing, they can't do what you want. My secret will.

Adam Stirling: 6:33

Yeah.

Michael Mulligan: 6:34

Yeah, I see, really made the will and I scrolled it away in the back of a reader's digest from 1987 and hidden it amongst many others. Right, that's not going to work too well. And so there's this doctrine that if there's evidence, the person had the thing, and that's important, because if they didn't have it, that doesn't really make sense, right. Like if the evidence was from the notary, say, for example, well, I had the thing, she asked me to keep it in my filing cabinet in the law firm, but unfortunately I had a fire and it was destroyed, for example. Right, then it wouldn't make sense to conclude that the person presumably wanted to destroy it, just as well as some intervening fire occurred and that's where that went, in which case a judge could enforce that unsigned copy, right. If the only indication was that that's what the person's wishes were, right, there are provisions to allow that, but because she had it, then that was clear and they couldn't find it. And then the judge looked at other things, like, for example, the judge can look at things like has the person said things over that time period about their wishes? Like if somebody said, literally I ripped that thing up, I realized I made a huge mistake, obviously without pretty compelling evidence, right? Or if somebody said, no, I've changed my mind or something happened, but there was nothing like that.

Michael Mulligan: 7:55

Unfortunately, this lady who passed away didn't have much interaction with her extended family. And then there's another interesting thing which can be considered by a judge, which would be that if the terms of a will are described as unreasonable, then there might be a suggestion that, let's say, somebody I don't know did some crazy thing. I'm leaving all of my money to somebody or other. It made no particular sense. You might say, well, hold on. Maybe that would be a suggestion that the person could have sort of calmed down and thought better about it and changed their mind. But that really wasn't clear here. It wasn't clear why she would have left it all to the one niece and the other extended family members. They didn't seem to have any particular special connection.

Michael Mulligan: 8:41

Other than this was an interesting point the lady who passed away her registered retirement income fund. She did name that niece as the only beneficiary of that and didn't change that. So that was one of the things that they pointed out. They were saying, well, hey, maybe this is a suggestion that that's indeed what she still wanted, because if she really changed her mind about giving everything to the niece and destroyed the will. Wouldn't she have changed that too? Not a bad argument. But then she said well, no, that's not necessarily so. A person can say well, yes, I still want this to go to this person, but I've changed my mind about everything else, and so I ripped that thing up.

Michael Mulligan: 9:16

And so at the end of the day, given that there was no statements, nothing really to determine that the person that changed their mind or maintained the same position or that the relationship had changed, or just nothing other than we know, she made the will.

Michael Mulligan: 9:31

She was the last one with the will, according to the only evidence they had was from the notary that prepared it, gave it to her and it was gone.

Michael Mulligan: 9:40

Nobody could locate it and there wasn't any evidence to the contrary that it burned down or that it was in the pile of magazines or anything else.

Michael Mulligan: 9:48

The result of that is that that doctrine or that presumption of destruction carried the day, and the judge pointed out you know it's on a stand, it's on a balance of probabilities, like any other civil case right, and the burden would be on the person who's trying to overcome that presumption of destruction, to lead some evidence which would satisfy the judge, on a balance of probabilities, that the testator hadn't decided to destroy the will because they no longer wanted it to have effect. And you know that just reflects the fact that generally if you have a will, you're going to probably put it somewhere where it's going to be found rather than hiding it away. And that's where that comes from and that's the presumption of destruction. And the net result here is that all of the extended relatives will wind up sharing in the proceeds or sharing in the assets, in accordance with what happens when somebody dies without a will, which is also set out in terms of how those are to be divided up. So the one needs doesn't get it all.

Adam Stirling: 10:53

Michael Morgan with Legally Speaking will take a quick break. We're back right after this. All right back on the air with legally speaking here at CFAQs 1070 with Michael Molligan and Molligan defense lawyers. After that latest matter involving estates, I see the term WestJet here. What's?

Michael Mulligan: 11:08

going on. I must say, indeed everyone's favorite punching bag airlines.

Adam Stirling: 11:14

So they're so loved all of them.

Michael Mulligan: 11:17

They're beloved, aren't they? The next case involves a proposed class action against both Air Canada and WestJet and WestJet's attempt to stop the claim against them, arguing that it has no chance of success. And, as we talked about before, much of the fighting over class actions occurs before the thing actually becomes a class action right trying to stop the thing from being certified as a class action, or arguing that the whole thing is doomed, trying to get it struck out. And so this was an application by WestJet, arguing that all of this was doomed and had no hope of success and so it ought to be stopped right now. Air Canada, for its part, didn't bother joining in that application. They were kind of along for the ride. And so here's the claim, which is the interesting part of it. So this is a BC case. The plaintiffs are individuals with varying forms of disabilities, including, according to the judge, severe cases of obesity such that they cannot lower the armrest of an economy aircraft seat, those who require a hair aid or a safe for self-reliance.

Michael Mulligan: 12:26

They need somebody else on the plane to help them or people who require a service animal that's so large that it can't fit at their feet, and the issue is can they be charged extra for the second seat? Basically right. The argument in the class action is that people who have those disabilities shouldn't have to pay for the second seat if they can't get the armrest down, or they shouldn't have to pay for a second seat for the person who's their aid accompanying them, or for the second seat to have the floor space for the service animal. And the landscape in that regard is complicated in Canada because you've got, first of all, some federal jurisdiction over those things airlines right, and there's been a previous decision in terms of disability rights federally but back in 2008, resulted in changes to how WestJet handled domestic requests for those things such that the human rights decision concluded that it was unreasonable for the airline not to provide the second seat if somebody couldn't get the armrest down, or for the care aid, or for the dog space and so on. Domestic flights they're not apparently charging for those things, and the issue then becomes a what about international flights? And I guess that was viewed differently from the human rights assessment because of the cost that would attach to that for the airline having to provide a free seat for the attendant to help the person, or for the dog, or for the second seat if that person couldn't physically fit in one seat. And so that's the basis upon which there's this claim being made and it's a, I must say, the concern from the airline I mean, on one hand, the description of when, according to the term, somebody might, for example, have required an aid would be things like if the person has impairments to both their hearing and vision, such that they would be unable to communicate with airline staff, or mobility impairment such that they would be unable to get done their oxygen master. And I see that particular one has a bit more resonance with the door plug of that Boeing falling out not that long ago.

Michael Mulligan: 14:52

And so, at the end of the day, there's going to be an issue here about the balancing of those rights and responsibilities. Who should bear that cost, right? And is that a legal requirement that somebody with a disability be afforded the second seat for free, or whether they should be required to pay for it? And it raises a number of interesting issues, including constitutional issues, who's got responsibility for it? And I suppose, at the end of the day, policy issues about. You know exactly those questions. Whose responsibility is it to pay for those things? Is it the airline? Does everyone have to be treated the same? Or, if you require more space for whatever reason it might be, does that mean you should pay for the additional space?

Michael Mulligan: 15:41

At the end of the day, the WestJet claimed that this was all doomed. Despite various creative arguments, including resorting to constitutional arguments about things like paramountcy and inter-jurisdictional immunity and various other things, the judge concluded that all those are interesting points. Right. It all will be litigated and sorted out at the end of the day, but it wasn't plain and obvious that this claim against WestJet was going to fail, and so the result of that is that WestJet was unsuccessful in getting that the claim struck out at this stage, and the case will now move on to the next stage of seeking certification as a class action, and so we will need to wait and see what the eventual outcome is in terms of who's got to pay for the extra seat on both WestJet and on Air Canada.

Adam Stirling: 16:31

And our final matter what is character evidence and why might it be important or allowed, or rather disallowed?

Michael Mulligan: 16:40

Yeah, that's really interesting and this comes out of a case that some people might have heard of recently. It's a case of the Campbell River and it's a case that dated back to when COVID was a new and more pressing matter and the incident in a save on foods up in Campbell River, and the accused in that case was convicted on the basis of coughing intentionally coughing in the direction of some employees at Save On Food. There was also an incident with whether she had intentionally pushed a shopping cart into one of them when they were dealing with her. That was the underlying issue and here's how the character evidence came up. The accused in that case she started without a lawyer. She had a lawyer helping her for a little bit but then, for reasons unknown, decided to fire her lawyer and try to carry on the case on her own Not generally a good idea, but that's what she did. She then advised the trial judge that she intended to call character evidence when it was her opportunity. Crown counsel stood up and said that character evidence would be irrelevant and the judge ruled that character evidence could be helpful in sentencing, but character evidence was not admissible in the trial.

Michael Mulligan: 17:56

Trial part of the case, whether on behalf of the crown or the accused. Now, the result of that? The woman didn't call any evidence and she was convicted. The trouble with that is, as a matter of law, both crown counsel and the judge were just 100% wrong. There's no other way to put it. Indeed, character evidence can be relevant on sentencing, like if somebody is convicted all kinds of things to be relevant for a judge to determine what sentence should be imposed. Right, does the person have some terribly long record of dastardly conduct? Maybe a greater sentence? Right, does the person had never had any trouble in their life before and they're 65 years old? And okay? Well, that would result in probably different outcome, right, so clearly relevant there. But it's also relevant in the trial. And now, when the way it works is this during a criminal case, crown counsel cannot leave evidence of bad character on their own to try to suggest to the judge this is just some dastardly character and more likely to be guilty. Okay, that's not allowed, right? We don't want to just kind of round up the usual suspects and convict people on the basis that they're a dastardly person.

Michael Mulligan: 19:07

Criminal cases are about the allegation, not are you a bad person or a good person? Right, but an accused person can choose to leave evidence of good character in their case at the trial to suggest that either it's less likely they committed the offense or that they are more worthy of belief. And the history of that goes back a very long time. We used to have trials where, a very, very long time ago, the jury was comprised of people who like from the community, who like know the person right and know about all the circumstances. They could sort of oh you know, that's Bob, is he likely to have done that? Well, he's, you know, always flying off the handle, probably just the kind of thing Bob would have done. We got past that.

Michael Mulligan: 19:51

But character evidence properly led is evidence of the person's reputation in the community. And so the way that would work is that if the defense wanted to lead character evidence, you wouldn't just be calling somebody's witness to say I think Mary is a great person and never would have done anything like this. That's just your opinion, right. But the way it would be done is that the potential witness would be expected to go and talk to other people in the community who are familiar with the accused person to find out their reputation. For example, does this person have a reputation for violence. Is this the sort of person who's likely to have pushed a shopping cart intentionally into a safe one foods employee? Is this the sort of person who's likely to have tried to cough on somebody intentionally to spread COVID right?

Adam Stirling: 20:36

Yeah.

Michael Mulligan: 20:37

And that character witness, after they've gathered information about the person's reputation in the community, is absolutely entitled to come and give evidence in the case for the accused to tell the judge or jury about exactly that. They'd be able to show up and say this is Mary. I've spoken to 10 people who know her in the community. They all agree she is somebody who is not violent. They've never seen her get into a circumstance where she's responded by using violence in a difficult circumstance. It's unlikely, according to her reputation, that she would have done such a thing and, moreover, she has a reputation for honesty. So if she testifies that she didn't do it, you ought to believe her, because I've spoken to all sorts of people who are familiar with her for 40 years. They all say they've never heard her lie about anything and she's a very honest person. That evidence is absolutely admissible. And so it would appear that both Crown who is not the Crown on the appeal, but Crown on the original trial and the judge just didn't know that that is the law. And so when the judge told her you can't do that, it's irrelevant After the Crown said exactly the same thing. It was just dead wrong. And so when the case got to the appeal, which is the decision that just came out this month. Just a few days ago, the Crown on the appeal different Crown from the one at trial acknowledged exactly that Judge and Crown were totally mistaken and, in fairness to the woman, she didn't have a lawyer at that point to tell her. That's just wrong. Go get the case law, show it to the judge, right, she didn't know. And so the Crown counsel tried to invoke what's called a curative provision proviso on an appeal and the idea there is that it's a 686 1B3, the criminal code, and the argument the Crown made on the appeal is that this was just a harmless error, it didn't make any difference. The judge on the appeal did not agree because there are two kinds of harmless mistake that might not impact the fairness of a conviction. The first category would be if a mistake was really minor, right Didn't really matter. That wasn't the case here. This was pretty significant. The second argument, or the second kind of mistake that might not result in a field being allowed, is if the error made no difference. Even if it was a big error, like if the case was overwhelming against the person, uh, it wouldn't made no difference. So the judge again found it's not the case here, and so the curator provisor did not apply. It was a major mistake. It could have impact on the trial.

Michael Mulligan: 23:06

And then the final decision for the judge on the appeal is do you order a new trial or do you acquit the person, cause they have either choice. Usually when there's a big mistake it would be go have a new trial and try again. But there is discretion where, for example, a person has served all of their sentence or a significant part of their sentence, for the judge to say that just wouldn't be fair. We're not going to have to do this over again. The trial was wrong. The person served their sentence, they don't. Why would we do this again? Uh, and here the judge found the person had served all of her sentence. She'd only served, I think, a third of her probation order. But the judge said look at all these circumstances, given that she served that much of her probation and given the serious mistake that was made at the trial, it wouldn't be fair to order another one. And so the judge acquitted her. And that's the significance of character evidence and how it's still completely admissible uh in a uh in a trial today.

Adam Stirling: 23:58

Michael Morgan with Morgan offense lawyers. Legally speaking, that's all the time we have for now. Pleasure is always until next week. Thanks so much. Always enjoy it. All right, Quick break.

Michael Mulligan: 24:07

News is next.