Prepare to navigate the tumultuous waters of legal reform and societal justice with our guest, Michael Mulligan from Mulligan Defence Lawyers. Our latest episode peels back the layers of Bill 21, a contentious BCNDP legislation aimed at bringing the regulator of lawyers in British Columbia under political control. Feel the electric tension as we dissect the Law Society of BC's apprehensions, the BC Conservative Party's firm stance on repeal, and the international law implications flagged by Lawyers' Rights Watch Canada. We tackle the poignant question: How will political gamesmanship shape the future of legal regulation?
Venture further as we redefine the ordinary, transforming a Surrey man's storage dilemma into a case study on municipal bylaws. Meanwhile, we scrutinize the recent triage policy by the BC First Nations Justice Council on Gladue reports, underscoring the impact a lack of resources could have on justice for Indigenous people. Join us for a compelling journey through the intricate crossroads where law meets life.
Follow this link for a transcipt of the show and links to the cases and material discussed.
Prepare to navigate the tumultuous waters of legal reform and societal justice with our guest, Michael Mulligan from Mulligan Defence Lawyers. Our latest episode peels back the layers of Bill 21, a contentious BCNDP legislation aimed at bringing the regulator of lawyers in British Columbia under political control. Feel the electric tension as we dissect the Law Society of BC's apprehensions, the BC Conservative Party's firm stance on repeal, and the international law implications flagged by Lawyers' Rights Watch Canada. We tackle the poignant question: How will political gamesmanship shape the future of legal regulation?
Venture further as we redefine the ordinary, transforming a Surrey man's storage dilemma into a case study on municipal bylaws. Meanwhile, we scrutinize the recent triage policy by the BC First Nations Justice Council on Gladue reports, underscoring the impact a lack of resources could have on justice for Indigenous people. Join us for a compelling journey through the intricate crossroads where law meets life.
Follow this link for a transcipt of the show and links to the cases and material discussed.
It's time for our regular segment Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers. Morning, Michael, how are we doing? Hey, good morning, I'm doing great. Always good to be here. We have an update on a story that we discussed last week off the top.
Michael Mulligan:Indeed, we do so. We spoke last week about a bill that was introduced last week, bill 21, which is a BCNDP piece of legislation that attempts to introduce political control over the regulator of lawyers in British Columbia and how. That is just not an appropriate approach, no matter what you think about the government's goals in doing that. Since then, there have been a number of things that have occurred. First of all, it's gotten some political attention. Happily, the BC Conservative Party just announced this week that they oppose what the NDP are hoping to do with this legislation, indicating that it would end self-regulation and amount to an attempt to exercise political control over the legal system, and they've indicated that if they are elected, they will repeal this piece of legislation. That's positive in a couple of ways. First of all, in terms of that outcome, but it's also positive in the sense that the response wasn't well, if we get in, we're going to take out the NDP's priorities and insert our priorities into this legislation, and that's really one of the core problems with this right. You know who is ever in power if they think, hey, I can just put my thumb on the justice system to achieve whatever I think are the most important objectives. We wouldn't benefit from just ping-ponging back and forth in terms of what those objectives would be, and so that's positive. We're also waiting to hear what the position is of the BC United Party, whether they agree that this piece of legislation is both inappropriate and should be repealed, and hopefully we'll hear from them shortly.
Michael Mulligan:The other thing which has been going on is the government and the Attorney General, who's currently a person by the name of Ms Sharma, and the Attorney General, who's currently a person by the name of Ms Sharma, has been taking a bit of a beating, in a figurative sense, in her efforts to defend this proposal.
Michael Mulligan:She's come under fire in a number of different ways. There was a meeting last week, and she's been attending meetings involving lawyers trying to defend this virtually indefensible policy to try to take political control and insert goals into the regulator of lawyers meeting sitting at a table you could just see the uncomfortable nature of the meeting sitting at the same table. At the other end, looking like she was trying to distance herself physically in every way possible from Ms Sharma, was Ms Dollywall, who's the president of the Law Society of British Columbia, who was criticizing her in the most clear terms about just how inappropriate this proposal was, and Ms Sharma, for her part, was sitting there. She's obviously a bright person, but she was there with some notes prepared obviously by staff or somebody trying to defend the indefensible talking about how this is modernization, as if that makes something a good idea.
Adam Stirling:Well, I can just imagine trying to argue with a bunch of lawyers about how lawyers should be regulated Like. It seems to me that's not a wise proposition.
Michael Mulligan:No, and when your best arguments are things like well, this is new, it isn't a new modern thing, good, no.
Adam Stirling:No no.
Michael Mulligan:Not everything that's new is good. Some ideas are just very, very bad, and this is in the category of very, very bad. The government's also come under fire. There's an organization that's actually based in BC called Warriors Rights Watch Canada, which ordinarily is dealing with things like what's happening in China or various other dictatorships putting warriors in prison and other human rights defenders, and that organization is also now opened up on the BCNDP and Ms Sharma for this proposal, putting in a briefing and letters and so on, telling her that what is proposed here violates Canada's treaty and other obligations, including. This is interesting because one of the arguments the BCNDP has given for this is saying the BCNDP have given for this is saying we want to insert our priorities with respect to the UN Declaration on the Rights of Indigenous People. That's one of the things they want to write in and mandate the law society focus on, rather than upholding and protecting the legal rights and freedoms of all people.
Michael Mulligan:And the Lawyers' Rights Watch has pointed out that this proposal Bill 21, violates the UN basic principles on the role of lawyers.
Michael Mulligan:It violates the International Convention on Civil and Political Rights and just doesn't comply with Canada's international law obligations. To tell you it's a bad day when you are in the sights of an organization that's usually spending its time dealing with military juntas and you know lawyers being put in prison for defending their clients. And so that's the current state of Bill C-21. It's a dreadful, poorly thought out proposal and hopefully the BCNDP smartens up and realizes that, no matter how much they think their political priorities are the right ones, trying to put your thumb on the legal profession to achieve your goals is not principled, not wise and should not be pursued. So hopefully this thing gets abandoned, and if it's not abandoned and if it's not abandoned, hopefully we'll get commitments from both of the potential other parties in British Columbia that would have some prospect of forming government to repeal this poorly thought out plan. So that's what's happened with Bill 21 over the last week. Hopefully the government smartens up and realizes that this just isn't going to fly.
Adam Stirling:All right, we'll continue to watch that one. Up next on our list a Costco confrontation, pepper spray, a shove and a manslaughter conviction.
Michael Mulligan:Indeed, this is one that anyone who's shopped at Costco on a weekend I think should be able to relate to. It's a terribly unfortunate incident. It was actually over the Costco from downtown Vancouver. Yes, unfortunate incident. It was actually over the Costco from downtown Vancouver.
Michael Mulligan:But the background of it is that on a busy day at Costco, there was a 57-year-old man and a 16-year-old daughter who were walking out and wound up in some kind of an altercation in a crowded circumstance with an 86 year-old man. The 86-year-old sadly decided that he was going to take matters into his own hands by pulling out pepper spray and twice pepper spraying the 57 year old and also hitting the 16 year old daughter with pepper spray. The 86 year old then turned around and apparently started to walk away. After pepper spraying the man and his daughter, the 57-year-old pushed the 86-year-old who very unfortunately, fell over, hit his head, went into a coma and died four weeks later. So uh-oh is right, and so that resulted in a charge of manslaughter, right? There is no suggestion that the 57-year-old was intending to kill the man who had just pepper sprayed him. But the issue was was that shove and assault? Was that unlawful, right? And then did that result in the man's death, which can result in a manslaughter conviction.
Michael Mulligan:And he was convicted by a jury and what occurred just this week was an appeal of that conviction, which has a couple of interesting or, I think, three interesting elements to what people should be aware of.
Michael Mulligan:First of all, an appeal from a case involving a jury verdict. Juries don't give reasons for what they've done. They just come out and give a decision right. They don't quiz the 12 people and say what did you do and why did you do it? You know, a judge has to explain what they're doing, Juries don't, and so on a where there's a conviction, on a by a jury, what is ordinarily looked at where there is an appeal is what instructions did the judge give the jury? Because a judge at the end of a criminal or even civil case will tell the jury here's how you're supposed to go and do your job, here are the elements of the offense, here's how this is supposed to work. And one of the things that judges will almost always tell juries is they'll say look, you're the judge of the facts, I'm the judge of the law. I'm going to tell you what the law is and it's important you do what I'm telling you because if I make a mistake, that could be fixed by the court of appeal appeal. If you do something that I'm not telling you, we can't ever fix that. And so on an appeal, it's often looking at what exactly did the judge tell the jury and was that correct? Right here, one of the issues on appeal was did the judge make a mistake in terms of what they told the jury about the concept of consent?
Michael Mulligan:Because you could have circumstances where people consent to a fight, like if it's very clear, like if somebody comes home and says let's go settle this in the parking lot and you and the other person put your fists up and punch each other. Right, neither of you has assaulted one another. You've agreed to have a fight, right, but you can also have implied consent, right. So let's say, I put on boxing gloves and headgear and climb into a ring and you do the same. I haven't said to you you may hit me now, but by and implication I've agreed to that right. Or you know, even if you said to somebody let's settle this outside, and you don't say you may hit me, you put up your fist, the other person does and you punch each other, there would be consent to that right by implication. Well, you went outside and you took off your right, put your hands up, and that's clearly what you agreed to do.
Michael Mulligan:So here one of the issues was was the judge mistaken in terms of what he told the jury about that? And there's a proviso people should be aware of in terms of what you can consent to and it comes from a case called Jobbidin from the Supreme Court of Canada and while you can indeed consent to, for example, having a fistfight, you can't consent to doing something which would cause serious bodily harm, like you can't say let's go out and have a duel, here's your pistols, let's walk away. You can't do that, right. We don't for policy reasons, even though both parties may have agreed to the duel, we don't allow that. But the instruction the judge gave to the jury about that, while the judge used some of the language from that Supreme Court of Canada case, it was kind of muddled, because there's a requirement that you can't consent to doing something which has the intention of causing serious bodily harm, right. It's like if two people get in a boxing ring and say let's box, right, and one punches the other and tragically, the person falls over, hits their head and dies, that still would be consensual right, because the person who did the punching of the person in the headgear in the boxing match wasn't intending to cause serious bodily harm to the person, right, they were just intending to have a boxing match, even if it had a tragic consequence. And the judge gave sort of a muddled instruction that didn't make clear to the jury that you can still have a consent to something even where there is serious bodily harm, because there wasn't an intention to do that. So that was the alleged mistake the judge made. The Court of Appeal, the Crown and the defense on appeal all agreed the judge's instruction was not correct or at least unclear. But that leads us to the final thing people should be aware of.
Michael Mulligan:There's a provision in the Criminal Code on Appeals Section 686 of the Criminal Code, dealing with appeals where, even if there is a mistake in what the judge has told the jury, the court of appeal can find that there was no substantial wrong or miscarriage of justice despite the mistake. And the way that works is that if the accused on an appeal shows, hey, the judge made an error, this wasn't the correct statement of the law, the Crown can then make an argument that yes, it was a mistake, but it was harmless, it would have had no impact on the outcome. Or in the other case, you can say look, the case was so overwhelming it just doesn't matter. Right, the second part didn't really apply. This wasn't some overwhelming case. Genuinely there'd be some issue about that.
Michael Mulligan:But here the Court of Appeal found that, well, this might not have been perfect, it was a little unclear, but that really wasn't an issue that would have changed the outcome of this in the Court of Appeal's view. And so they applied that proviso, and so, even though the judge made a mistake, it wasn't enough for there to be a new trial ordered, and so the result of that is that the man will have to serve an 18-month jail sentence for what occurred. And so there's a tragic circumstance, if you've ever heard of one, and maybe the best argument I've heard yet, for maybe it's time to build another Costco around here so we don't have shoving matches on the way out. But it's also just a cautionary tale in terms of just how quickly something can go very badly and result in both a tragic outcome and a ruined life, at least for that period of time, for this father of the 16-year-old. He'll be in jail for 18 months as a result of responding to the pepper spray. That's the case from Costco.
Adam Stirling:All right, we'll take our break now. Legally speaking, we'll continue in just a moment on CFAX 1070. All right back on the air here at CFAX 1070, legally Speaking with Michael Mulligan, with Mulligan Defense Lawyers continuing Up next. What makes a shipping container a container, legally speaking, michael?
Michael Mulligan:Well, we have a legal answer to that now, happily. This comes out of a cute case out of Surrey, and the case involves a man who purchased a shipping container or a metal box that looks like a shipping container, that uses a storage shed, and the municipality there was trying to get an injunction to have it removed. And so the issue became is this a storage? Is this a shipping container? Here's how it's defined in Surrey Shipping container means an enclosed unit used or intended to be used for storing and transporting goods via ship, rail or truck, whether or not it is actually being used for such a purpose, and the bylaw says you can't have one of those things in your residential area.
Michael Mulligan:So the particular thing in question looked a lot like a shipping container, according to the judge, but there were a few things that were different about it, including the fact that on one side it had three windows and a door installed in it, and the man who owned this thing indicated that he had never used this as a shipping container and that, indeed, he had purchased it to use as a storage shed and had never used it for any other purpose, and so his argument was this isn't a shipping container, it's not being used. It was not intended to be used for any of those things listed there. This is my storage shed. It just looks a lot like a shipping container. You know, maybe that's how it started life. And so the judge had to sort out is this a shipping container? And so the judge looked at first of all what it looked like, and in the judge's judgment it looked a lot like a shipping container, barring the windows and doors. And I think one of the things that perhaps was unfavorable for the man with his storage shed was that there were pictures of this thing and printed on the side of it. In the pictures it said nine foot six inch high container, and it has serial numbers and a cubic capacity and the weight of goods that can be held in. And that appears to have pushed it over the edge. Uh, for what this thing was, and it was also metal, rectangular, had two doors at either end, looks like a shipping container. It's quacking and walking like a duck, uh, and so I I guess the uh.
Michael Mulligan:Ultimately the judge concluded indeed, this is a shipping container, despite the doors and windows and speculation about whether it could still be used to ship anything with those things cut into it. And so I guess the moral of the story there is that if you're going to engage in litigation about whether something is or is not a particular object, don't have the word of the thing at issue painted on the side of it. That may hurt your case. Of the thing at issue painted on the side of it, that may hurt your case.
Michael Mulligan:And so at the end of the day, the municipality got its order that the man's storage shed that looks a lot like a shipping container and says six inch six it says container on the side of it is going to have to be removed. Mercifully, the city of Surrey decided to ask the judge to impose costs which were less than what otherwise might be the case. If you win in court, you presumptively get your costs, which are like a portion of the legal costs involved, but the city mercifully asked the judge to reduce that to a flat $1,000. So while I'm sure the man is not happy about having to haul away his storage shed, at least the amount of costs that he could have been stuck with is a lot less. So I guess read the bylaw before you decide to put a storage shed down. In a lot of places that's not going to work All right.
Michael Mulligan:And what storage shed is.
Adam Stirling:So that's what a storage shed is. You and I have talked about Gladue reports a number of times in the past.
Michael Mulligan:I know you recently talked about the resources required to produce them, as they seemingly are sought more and more often in legal matters. I see an update on that here. There is Not a good one, and so you're quite right. The Gladue report would be a report prepared, and it's intended to set out the sort of background and circumstances of an Indigenous person which may be a consideration for a judge on sentencing, and the Supreme Court of Canada has directed judges that you know a person's background may have an impact on, for example, their moral culpability. It should have a potential impact on sentencing and other factors. And indeed, when you get these reports and they are very sadly common also have common themes to them which are often just the terrible and tragic background of Indigenous people who wind up in the criminal justice system. And if they don't make you upset reading them, your heart has gone hard, because the common elements there are just heartbreaking, often in terms of stories of deprivation and family impacts and alcoholism and other things that impact children and others, and so they're just tragic and so they're also important, right? So the judges have that background. Now the provincial government a couple of years ago now transferred responsibility to produce these things to an organization called the BC First Nations Justice Council and the idea there is it would be an Indigenous-run organization who would hire the people to produce the reports so that they make sort of autonomy over the production of those things. Good idea. But because there are so many Indigenous people in the criminal justice system, the demand for these things has overwhelmed that organization's capacity to produce them and the law directs judges that what's in these reports factors in a variety of things like bail hearings and sentencing hearings and dangerous offender hearings and all kinds of other things that happen in the criminal justice system. It's important for judges to have that background about people.
Michael Mulligan:Last month the First Nations Justice Council sent out letters to people who had ordered these reports indicating essentially they've just been overwhelmed, they can't produce them and so they've implemented what they describe as a triage policy where they will only produce them where the Crown is seeking more than two years in jail. For people that are facing between six months and two years in jail, they will only be able to produce a thing they describe as a glad-do letter. That's unheard of. That's not a real thing. I guess that means something short, because they don't have enough resources to write the full thing. And then for Indigenous people that are facing less than six months in jail. They can't do them at all. They've also said they may do them in some limited case-by-case basis for things like dangerous offender hearings. That's shocking. A dangerous offender hearing can result in somebody being in prison for life.
Adam Stirling:Yes.
Michael Mulligan:And in other circumstances they just can't produce them at all, and so that's a serious problem and it's really a sad commentary on the state of affairs in the criminal justice system which, as we talked about before, just massively over-represents Indigenous people in prison. It is just unacceptable what the outcome is. This is one of the things which the Supreme Court of Canada has tried to do to try to ameliorate some of that, so that judges would have the information about somebody's background and they would know about that, so that they can take that into consideration when making all of these kinds of decisions. Right, and you can easily see how that is important and relevant information. Right, you know, if somebody you know survived residential school and led a you know childhood of deprivation and abuse, and in that context they do something that just is relevant because that's going to go to the person's sort of level of moral culpability, and maybe the answer in some of those cases is not the same type or length of jail sentence that you might impose if somebody hadn't had a horrific background. And so having this Indigenous group produce these reports is a good idea, but it needs resources and it doesn't have sufficient resources, and so without them that effort is just undermined.
Michael Mulligan:It's not an acceptable state of affairs to say, unless you're facing a long jail sentence, a judge is just not going to get the information they should have. Legally are required to have to make these sort of important decisions, and so that's a serious problem. This was just came out last month and hopefully it gets fixed soon, because otherwise we're just going to continue the unfortunate march we've had for the last number of years, with more and more Indigenous people in prison, that doing it without required information is not the way to do it. So hopefully this gets fixed. That's what's going on with leading reports.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Legally speaking, this is during the second half of our second hour every Thursday on CFAX. Thank you as always, Michael.
Michael Mulligan:Thank you so much. Have a great day you too. Take care.