Discover the thin line between lawful investigation and constitutional breaches with our expert Michael Mulligan from Mulligan Defense Lawyers. We dissect a murder case where evidence handling sparked controversy and an acquittal that left many questioning the integrity of the investigation. Dive into a profound discussion on the procedural missteps during the seizure of cell phones and a security system, and how these actions swayed a trial's outcome. The legal dance between police conduct and individual rights is laid bare, offering a rare glimpse into the complex machinery of our criminal justice system.
Shifting gears, we tackle the clash between a First Nation's rights and energy infrastructure in British Columbia. The heart of the debate? A hydro dam's operation they claim infringes on their longstanding fishing practices. Mulligan guides us through the nuances of the Kennedy Dam's effects on the Nechako River, and the formidable legal arguments at play. The case transcends a simple legal dispute, shedding light on the intricate relationship between energy needs, environmental responsibilities, and the sovereignty of indigenous peoples. Join us for a thought-provoking exploration of these critical issues that continue to shape the legal and cultural landscape of the region.
Follow this link for a transcript of the show and links to the cases discsussed.
Discover the thin line between lawful investigation and constitutional breaches with our expert Michael Mulligan from Mulligan Defense Lawyers. We dissect a murder case where evidence handling sparked controversy and an acquittal that left many questioning the integrity of the investigation. Dive into a profound discussion on the procedural missteps during the seizure of cell phones and a security system, and how these actions swayed a trial's outcome. The legal dance between police conduct and individual rights is laid bare, offering a rare glimpse into the complex machinery of our criminal justice system.
Shifting gears, we tackle the clash between a First Nation's rights and energy infrastructure in British Columbia. The heart of the debate? A hydro dam's operation they claim infringes on their longstanding fishing practices. Mulligan guides us through the nuances of the Kennedy Dam's effects on the Nechako River, and the formidable legal arguments at play. The case transcends a simple legal dispute, shedding light on the intricate relationship between energy needs, environmental responsibilities, and the sovereignty of indigenous peoples. Join us for a thought-provoking exploration of these critical issues that continue to shape the legal and cultural landscape of the region.
Follow this link for a transcript of the show and links to the cases discsussed.
legally speaking, as we keep going here from mulligan defense lawyers in the time of michael mulligan, in just a moment, let's see if we can bring michael up here. Hey, michael, are you there? I'm here, are you doing? We've got yet good story. We had some, uh, technical difficulties during the break here, but we have a solid connection. Now we do. You just find this is, legally speaking, what's on our agenda today uh.
Michael Mulligan:The first case on the agenda is a that was an unsuccessful appeal from an acquittal on a murder charge uh, which is an interesting uh principles people should know about. Uh. The case itself dated from back in twenty eleven and surrey, and that timing is significant. What went on here? Uh, the fact pattern involved a uh uh deceased and his wife uh driving in surrey, behind uh a forerunner which is driving in an erratic fashion. Uh, the uh deceased tried to pass the car and there's a minor collision with its word. The two cars stopped. The deceased got out and walked up to the forerunner uh. Some words were exchanged and, without warning, the driver of the forerunner pulled out a handgun and shot him twice, killing him. This tragic circumstance the wife, his wife of the deceased, got out of the car, inserted walking towards the forerunner, saw the driver in the handgun at her uh. She ducked in. The driver missed, fortunately, so she survived before when her girl away.
Michael Mulligan:The issue was who was the driver of the forerunner? The police got a uh some form of a tip that it might be a particular person that might have been driving a relative's forerunner uh, and they were able to obtain a search warrant for that person's house and that's the first important thing to know about, which is uh that when the police apply for a search warrant they need to satisfy a judge or judicial justice that there are reasonable grounds to believe there's going to be evidence of a particular place in the place they want to search and a search warrant was authorized will set out what the police are permitted to go and look for. Right, and this particular case authorized the police to go and uh search the uh suspect home. Uh, to see the most other things his cell phone. The police showed up to execute the search warrant. They went into the home, five adults lived in the home and they elected to see all of the cell phones in the home without making any effort to figure out who's was who's. Uh. They also saw a surveillance system in the home like a security camera system, and they see that too. Both of those are potentially problematic.
Michael Mulligan:The police, when they're executing a search warrant, if they see some obvious evidence laying out right, they're not required to leave it there. You know, if you go into a few search warrant uh murder case, you see the body laying on the ground. You know that that's not off limits. But you can't go and otherwise just take things that are authorized by the search warrant. So they see all these phones and the security system, uh, but then that didn't do any kind of, uh, careful analysis of the phone. And that brings us to the next problem in the case, which is when the police these evidence.
Michael Mulligan:Uh, in a criminal investigation, uh, if there is a charge late but the person's charge with murder, there's no problem keeping the evidence of the alleged murder, right, if somebody's charged, yeah.
Michael Mulligan:But if no one is charged, they can't just keep stuff they took forever, right, they need permission to keep it and the first time period would be three months.
Michael Mulligan:So the idea of the police take something to do the search warrant, if they write a report, persons charged, that's no problem, doesn't matter how long it takes that stuff to be held on to its evidence of the crime, right, that's for what you'd expect if you don't charge somebody to just take things the three-quirement legal requirements but the police go and get approval to hang on to them when there's no one charged with the methods.
Michael Mulligan:Here the problem was that they didn't do that and it wasn't an oversight, uh, they in effect had a policy not to do that and here. They kept the cell phones without approval for six years without analyzing them, and they did that despite the fact they were told by senior crown you can't do that. You must get approval to keep these things. They didn't like that advice and they ignored it. Eventually, after six years and with no approval to keep all these phones that they'd seized the, examine them and lo and behold, on one of the phones there is an audio of the murder okay so that's the case that goes in front of the trial judge, uh, and there are a number of challenges raised to what went on here.
Michael Mulligan:One of the first challenges was was that they didn't have authority to take all these things and the judge found that they didn't.
Michael Mulligan:The search warrant specified they could see the phone of the suspect right so they could look at it to figure out if there's, you know, data that may show you within the area, whatever it might be. But the warrant didn't authorize them to just sees everyone's phone right and the office who testified to know there's no way to know whose phone is whose, which the judge didn't believe for a moment. Right, you can imagine all kinds of reasonable things you could do to figure out whose phone is that, particularly when you're at a home with five other people, you know, with five people, right, and they didn't do that. So they found judge found first of all that was unconstitutional, not permitted, but then, on the uh not getting approval, as is clearly required to keep these things uh, and willfully refusing to do that, despite being told clearly that they are required to do it, was viewed by the trial judge as very curious in a criminal case where there is a breach of somebody's right so I can escape cost to some right to be uh, freedom free from unreasonable certain seizure, for example. Right when the police breach somebody's right it's not automatic but evidence they get will be excluded.
Michael Mulligan:In canada there is a way in the section twenty four two and I judge has to consider should the evidence be allowed in the trial despite some unconstitutional conduct by the police. And when a judge is doing that they need to weigh up things, including how serious was the breach with this? Just some slip up or somebody got the wrote down the wrong address or something great? Uh, or is this serious conduct, like here where the judge and now the court of appeal it's upheld the decision that this was a uh flagrant, willful, knowing breach? Right, it's the and I think the conduct in the crown eventually agreed that was and the judge found that when you have was described as a great, just, institutional, systemic disregard for a legal requirement, despite being told clearly by more than one senior crown you've got to get approval to keep this. His willfully deciding we're not doing that.
Michael Mulligan:Uh made what went on here particularly serious and the judge who looked at just cannot count them that kind of willful refusal to do what is legally required and ultimately the decision about whether evidence should be admitted turns on whether allowing the evidence to be used would serve undermine uh face in the justice system, right that sort of a concept there. And when you have sort of serious willful uh reaches like this, not just some mistake but repeated, serious problems with transitutional, they're told to do it and they just refused. Uh, the judge found that, despite how serious the case was, uh, the evidence just couldn't be used. She just kept countermeasures police just willfully ignoring what they're clearly legally required to do. And so the result of that is that, uh, they, the evidence from the cell phone was not admissible, uh, and the man was acquitted.
Michael Mulligan:Uh, and the crown has appealed that uh, but as the crowd agreed on the appeal you know this was the crown said they conceded the police engaged in flagrant, deliberate and egregious uh breaches of what's required of them, and the result of that is that there was no remedy for the court of by the from the court of appeal either. Um, and so, despite having an audio recording of the murder on one of these phones, uh, because of how the police decided to deal with that and keep them, uh. The result is there will be no trial on the merits and the man has not been convicted. So that's the latest from the court of appeal on why the police just need to follow the legal requirements if they want to keep and uh and eventually be able to use evidence they seized.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Legally Speaking will continue right after this. Adam Sterling on CFAX 1070 and streaming on the iHeartRadio app. All right, we're back on the air here at CFAX 1070. It's Legally Speaking with Michael Mulligan, barrister and Solicitor with Mulligan Defense Lawyers. Michael next up on the agenda. I see here a First Nation and appeal regarding a hydro dam removed on the basis that it's a legal nuisance. What happened here?
Michael Mulligan:Well, this is a significant key sort of the court of appeal was just released, and this another litigation in this area is going to have a real potential impacts for things in British Columbia, including how energy is generated right In BC. We're pretty fortunate in that most of our electrical energy is generated by pyro dams, right, and the hope is that over time there'll be more of that, but we have a long way to go. When I last looked it up, the in BC, 16% of our energy is generated is electricity, right, the rest is made up largely of the petroleum products and natural gas, and so the hope is that we would be able to increase the amount of electricity we're using and decrease how much gas and natural gas we're using. But boy, we've got a long way to go.
Michael Mulligan:Where it's 16% and the rest are things that are rather more polluting, and so that brings us to this, and this particular piece of litigation involves the Kennedy Dam, and that's a dam that's on the Chaco River and it was built in the 1950s.
Michael Mulligan:It was built by Alcan to provide power for aluminum smelting, and the power is now used for both that and general public use, right, it's also somewhere that goes for that, and to give an idea of the scale of that dam, the Kennedy Dam produces 890 megawatts. Right, the site C dam, when it's complete, will produce 1,100 megawatts, so almost as big as the site C dam, that's of a total in DC of some 18,000 and change megawatts. So it's a pretty big dam. I guess that's the point and the legal keys was brought by indigenous or First Nations in the area and it was brought, interestingly, on the basis of a claim of nuisance. Well, there is, as a matter of, there's a common law toward of nuisance right and nuisance is, you know, if you do something which is going to seriously interfere with somebody's property rights, you could have a legal claim in nuisance right.
Adam Stirling:Interesting.
Michael Mulligan:You know, let's say, let's say somebody set up, you know, a pig farm next to your house, right, there's something immediate so you couldn't breathe the stink coming off it. Right, you might have a claim in nuisance, say, hey, I can't live in my house, it's just overwhelming stink, something like that. Right, so that's what a nuisance is. And here the claim made by the First Nations is they said look, this dam blocks and restricts the amount of water flowing down the river and it's flooded an area for its reservoir, right. And their claim was look, we have an first, we have an indigenous right to fish, and the restriction on water caused by this dam reduces the amount of fish available to us.
Michael Mulligan:Therefore, you're creating a nuisance, right, just like somebody who sets up something stinky or loud next to your house. Right, and as a matter of tort law, who, since was pretty broad, right, it's interfering or disturbing a person's exercise or enjoyment or arc of land that they own or occupy. So, okay, there it is. It's a creative, clean, um, and the defense raised, uh, by the aluminum company and ultimately, the province of British Columbia and the federal government, uh, was a defense of statutory authority. And then this is how that works with a nuisance claim. Uh, the basic idea is that, uh, if you are uh authorized to do something by statute and this was that there was statutory authority to build the dam, as you would sort of expect, right, you can't just go build a you know aluminum company at the school, build a dam somewhere. So there was legal authority to build it and there's a, a concept that when you do something that you're statutorily permitted to do, um, things which are necessarily flowing from that, can't be the basis for a nuisance claim. Okay, and so that's the defense raised by the company that built the dam and by the province and the federal government. And there's an interesting case. It actually comes out of Victoria, uh, from back in 1999, which provides some legal meaning to what is that, that defense that you might have? Uh, the defense of statutory authority. And it came out of a fact pattern in Victoria where a person on a motorcycle uh got their wheels stuck in one of the railway lines that used to run through, uh, across the road. You remember those who used to have those downtown where they bought the bridge going over towards capital iron, I think that's where that this happened. Okay, and so the person's wheel got stuck in the rail track and the railway, uh, their defense was statutory authority. We have statutory authority to put these rails in here. And in fact, uh, there is a, there are regulations that specify how wide the flange ways need to be and there was a range of permitted size. So they said, hey, we're just doing what we are statutorily authorized to do. You can't then successfully sue us claiming that we created a nuisance, that your motorcycle got stuck in, when we're doing what was statutorily we were statutorily authorized to do. Put this railway in.
Michael Mulligan:Uh, that case, the Victoria one, got all the way to the Supreme Court of Canada and the Supreme Court of Canada said, yes, this is a defense, uh, but it should be reviewed, should be viewed relatively narrowly on the idea that the activity that you're saying is protected by the statutory authority has to be an inevitable result of what you're statutorily permitted to do, right, so if there's statutory authority to, you could build that dam. If, inevitably, there's going to be a nuisance created by yeah, there's a big wall of concrete there, right, there's water backed up, there's less going down, that's kind of an nature of a dam, um, that it can amount to a defense. The problem for the railway company in that case, so to Victoria was that the railway needed decision to exceed the minimum flansway size by more than one inch. They made the gap bigger than they had to, right, and so ultimately, they weren't able to rely upon that defense. And so that's sort of that's the sort of heart of the legal framework that was first of all dealt with at this massive trial that went on for more than 150 days.
Michael Mulligan:Um, and now this appeal, and on that point, uh, the uh First Nations lost. Uh at trial, uh, and on appeal, indeed, the court of appeal upheld the trial, judges decision Saying, yep, uh, this was, uh, protected by this defense. So, statutory authority, the information to build the dam, the dam, necessarily, is causing the nuisance, Uh and so, uh, you cannot successfully sue them on that basis. What the court of appeal did do, however, is that they expanded the language of some declaratory relief that the uh judge provided, and declaratory relief is sort of like that. So these things up saying, yep, I do declare something, it's not a order to do something, it's sort of a statement of you know what the law is, to sort of direct people in the future in terms of how they should be deducted themselves.
Michael Mulligan:And the court of appeal, through, expanded on what the judge said, said by saying that the fiduciary duty owed by the provincial and federal governments, um, creates a obligation on them to try to minimize the um impact uh on, in this case on the right to fish on that river, which is constitutionally protected.
Michael Mulligan:And so, okay, that's going to create a basis for there to be likely further negotiations about either should they get some money for the reduced fish in the river because of the dam or, for example, the other thing discussed was should there be some change in terms of how much water can be held behind the dam right Should they be a requirement that more be allowed to flow through, even if it's not generating electricity, and so largely that statutory defense was upheld. They're not required to rip the dam down, nor is there going to be compensation ordered for the reduced fish resulting from the nuisance of the dam. But that's there and that's going to, as I said, guide likely further negotiations about this and may have an impact in the future about things like water stored and what about other?
Michael Mulligan:dams and all of that is just very important right, even what we talked about at the outset in terms of electrical power and what the province is trying to do in that regard. And it's clear we've got, even as things stand, a potential overall shortage of electrical power because there's increased demand for it with heat bumps and electric cars and all the things that we're trying to get people to start using so we don't pollute as much right, but that's got to come from somewhere. And this is an example of just how some of those decisions there's just going to be conflict in terms of use. And this kind of thing was also at the heart of a thing we talked about previously. The provincial government tried to introduce, with no notice to anyone, virtually no notice to anyone changes to the land act that was provided at a past, potential for additional sort of veto authority for First Nations over the use of crown land. Because of the pushback they got over, I think, how they tried to do that kind of slip it in on a website and give no press release and don't tell anyone. They've just announced the other week they are withdrawing that effort, probably until after the election Because, as you might imagine, there are some real conflicting interests here.
Michael Mulligan:Right, there are legitimate interests about First Nations' rights to land and right to fish, and, on the other hand, you've got all sorts of interests in terms of things like climate change and decarbonization and, to a significant extent, there's just no way around it. They're in conflict, and so that is likely why that decision was made not to advance that piece of legislation at this time, because both of those groups would, of course, be groups that the current government would hope to get support from, and you're just not going to please everyone, right? If you stop, if you let water flow through and don't build dams so there's more fishing available for First Nations, then we're going to be using more natural gas. Right? If you want to stop that, there's going to be an impact on it. There are tough decisions to be made about that, and if we want to have any hope of meeting any of the sort of you know the objectives we always hear about what's going to happen in 2030 or 2035 or 2040, whatever year, with a round number at the end of it we need to have a very significant increase in the amount of electricity we generate, and so we have to have some hard discussions and make some difficult decisions about where is that coming from? Because right now we're sitting at 16%, and so if we want to get up from there, it's got to come from somewhere.
Michael Mulligan:And this case is an important one. It may well go to the Supreme Court of Canada, and this and others are going to be guiding lights in terms of what is and can be done and how are we going to advance the ball on those two files and how are we supposed to weigh those things up. And so that's the case involving NUSIS. That has its origin in a part of legal origin in the motorcycle getting stuck in a train track in Victoria. So that's the latest of the Kennedy down.
Adam Stirling:Michael Bolligan. With Mulligan Defense Lawyers, they learn something new every week. It's, legally speaking, on CFAQ 1070. Michael, thank you. As always, always a pleasure. Thank you so much. Have a great day. All right, you too.