Miscellaneous but important amendments, and the BC COVID-19 data leak

This week on Legally Speaking with Michael Mulligan:

Miscellaneous Statutes Amendment Acts have, perhaps, the least exciting names imaginable. 

Sometimes, however, these acts bundle together legal changes that can be significant. 

If passes in BC, a recently introduced Miscellaneous Statutes Amendment Act will make changes that will have meaningful consequences for people. 

On the show, two of these changes are discussed. 

One of the proposed changes will require ICBC to withhold licence and insurance renewals for people with unpaid COVID related fines. 

A similar approach is used in an attempt to collect other fines, and debts including child support payments. 

The challenges with this approach include both the collections costs being transferred by the government to what is supposed to be an insurance company, and the fact that some people will respond by driving without insurance. 

An alternative approach is discussed on the show: deducting unpaid COVID related fines from COVID relieve cheques that would otherwise be sent to people. This approach would work more reliably, save money, and avoid unintended consequences. Mailing people with unpaid fines $500 or $1,000 cheques and then trying to compel payment by withholding insurance doesn’t make much sense. 

In addition, the Miscellaneous Statutes Amendment Act further expands the definition of “family violence” in the BC Family Law Act. 

This term has already been defined in a way that captures both actual violence, as well as things such as damage to property or the unreasonable restriction financial or personal autonomy. By defining a term, which has an ordinary English meaning, to include things that are not violence, needless litigation as resulted from people objecting to being labeled in this way. 

Ensuing litigation has resulted in findings of “family violence” for things including the sending of an email threatening to close a dental practice, a father saying that a mother’s actions were “contrary to scripture and sinful” and a mother interfering with a father’s access to children.  

Also on the show, the leak of COVID-19 information that the provincial government had been keeping secret is also discussed in the context of a decision to grant vaccine priority to judges and Crown Counsel in Vancouver without explanation for failing to do the same for other people working in the justice system including sheriffs, court clerks, defence counsel, and registry staff. 

Based on a review of the COVID-19 report that was leaked, it would appear that the government decided to release information selectively in order to encourage safer behavior. Information concerning the specific location of outbreaks and specific data concerning vaccine distribution was not released to the public. 

The trouble with this approach is that it undermines confidence in public health information and may cause long term harm by reducing the number or people will to be vaccinated. 

 In a democracy, there should be a very high threshold for keeping public information secret. 

Transcript

Legally Speaking May 13 2021

Adam Stirling [00:00:00] Time for Legally Speaking with Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael, how are you? 

Michael T. Mulligan [00:00:07] I'm doing great. Always good to be here. 

Adam Stirling [00:00:09] Absolutely. Some interesting things on the docket for this week, including a miscellaneous statutes, amendments, something or other. What are we looking at here? 

Michael T. Mulligan [00:00:19] Boy, oh, boy. I tell you, if you were trying to come up with a title that might cause people to look away for fear of falling asleep, you might call your piece of legislation the Miscellaneous Statutes Amendment Act. 

Adam Stirling [00:00:31] That's exactly where I would hide. 

Michael T. Mulligan [00:00:32] a lot of attention. 

Adam Stirling [00:00:33] Yeah, it's exactly where I would hide controversial changes. 

Michael T. Mulligan [00:00:36] That's right. It's sort of the opposite of the Patriot Act. And so, there was such an act introduced in the B.C. legislature, just yesterday. It's called Bill 11, the 2021 Miscellaneous Statute Amendment Act. And there are at least a couple of things in here that I think are worth talking about, of being aware of. And I should say they're in here with all kinds of things, everything from redefining the status of the Burrard thermal plant to changing other miscellaneous things, changing language about his and hers to persons and things of this sort. But two of the things tucked away in this act, I think, do bear some discussion. One of the things in this act is an amendment to the Family Law Act, and it is an amendment to the definition of the concept of, "family violence". And we've spoken about that previously. And what's happened over the past few years is that the B.C. Family Law Act has amended its definition of family violence to be extremely expansive to the point where it is no longer in accordance with what an ordinary person would think violence might be. And so this concept of family violence, which can impact on things like who's going to get access to the children or should there be a protection order put in place, or should somebody get the exclusive use of the family home has now been defined to include both things that ordinary people would think would amount to violence, like physically doing violent things to people, but has been expanded to include things such as, emotional abuse or unreasonable restrictions on a person's financial or personal autonomy. 

Adam Stirling [00:02:30] hmm. 

Michael T. Mulligan [00:02:30] Or the intentional damage to property. And so, what that has produced is a whole bunch of unnecessary family litigation, as people start to fight over whether something amounts to family violence. And you can well imagine, why would you say to somebody, hey, for example, in some cases here, your threat to close your dental practice in an email was family violence. 

Adam Stirling [00:02:58] mhmm. 

Michael T. Mulligan [00:02:58] You might well imagine a hold on a minute. That's not family violence. Well, indeed it was. And that case occupied sometime in the B.C. Supreme Court. Other things that now meet this extremely expansive definition include things like spiritual abuse, which was a case involving a father who was telling a mother that the child's actions were contrary to scripture. That was found to be violent. 

Adam Stirling [00:03:24] hmm. 

Michael T. Mulligan [00:03:24] Or indeed derogatory language used in an email met the definition of family violence. 

Adam Stirling [00:03:30] Wow. 

Michael T. Mulligan [00:03:30] Or, for example, a mother who interfered with the father's access to children. Certainly not a good thing to be doing, but that is indeed family violence. And so, by taking, you know, a term like that which has an English meaning, and you say to somebody, hey, a person is acting in a way that involves family violence. To most people, what's going to spring to mind would be you're violent. 

Adam Stirling [00:03:56] Indeed. 

Michael T. Mulligan [00:03:58] Not you threaten to close your dental practice or you've, you know, interfered with somebody's financial autonomy by cancelling their credit card. Right. 

Adam Stirling [00:04:08] yeah. 

Michael T. Mulligan [00:04:08] Or indeed, property damage. So, you can imagine, let's say, a woman were to find that her husband was cheating on her and she rips up the wedding photos. Well, she's engaged in the intentional damage to property. Therefore, she's committed family violence. And therefore, a judge is required to consider that and to issue a restraining order against her, protection order or but that might impact and whether she would have access to the children or indeed, somebody found that their spouse had been spending money on the family credit card to stay at a hotel with somebody. And you cancelled the credit card that might interfere with their financial autonomy. And so, once again, you might find yourself having committed family violence and litigation ensues. And so will all of those things may not be desirable. Things, people. You should be emotionally supportive and encourage others to engage in personal autonomy and ought not to damage wedding photos or other personal property, all of those things are to be encouraged. The government rather than what they did in this Miscellaneous Statute Amendment Act, which was to expand the concept of family violence, to now have it read that any of those various things would meet the definition with or without any intent to harm a family member. 

Adam Stirling [00:05:28] hmm. 

Michael T. Mulligan [00:05:28] That would capture, for example, the ripped up the wedding photos. 

Adam Stirling [00:05:31] Yeah. 

Michael T. Mulligan [00:05:32] You know, you they should if they think those are important considerations for determining who should get access to the children, for example, call it something else. Right. Call it something which an ordinary person would agree that that term would be appropriate to failing to be supportive or engaging in poor family conduct something else. 

Adam Stirling [00:05:54] Yeah. 

Michael T. Mulligan [00:05:54] But by defining words in a way that is not in accordance with the English language and with language, which would have quite appropriately a very negative connotation. That is going to produce a continued stream of litigation of the sort that we've seen. And so, this particular element of the Miscellaneous Statutes Amendment Act, I think ought to cause some concern and perhaps a redefining of that terminology in a way that isn't going to clog up the courts with fighting over language and things of the sort that. But I've indicated. So that's one element of the Miscellaneous Statute Amendments Act. The other significant one of the other significant elements of it is that the government has in this act, is attempting to amend the Motor Vehicle Act in order to have ICBC try to collect fines that people have not paid for Covid related matters. 

Adam Stirling [00:06:54] Interesting.

Michael T. Mulligan [00:06:55] And they're doing that by having ICBC, if this passes, withhold service for anyone. So, no driver's license renewal and no insurance purchasing. And given, of course, that they're the monopoly insurance provider, a person couldn't buy insurance somewhere else. So, the idea would be to use that as a way to lever the payment for unpaid Covid fines. Now, there are few comments about that. 

Adam Stirling [00:07:22] mmhmm. 

Michael T. Mulligan [00:07:22] First of all, there's a much more direct way to do that. And it's hard to understand why the government hasn't utilized this. But we have the provincial government sending checks to people for either $500 or a $1,000 as a Covid relief measure. And so surely if you've got somebody who's been convicted of breaching Covid safety measures, why are we then mailing them a check for $500 or a $1,000 and then trying to have ICBC chase them around to recover the money? Just don't mail them the cheque, set one off against the other. There's just no reason why you should be meeting at Covid relief cheque to a person who's been convicted and not paid their fine for breaching Covid safety measures. It makes absolutely no sense. 

Adam Stirling [00:08:12] Hmm. I wonder what the logistics are, because there must be a reason, one would think, for why they aren't doing that. I wonder what it is. 

Michael T. Mulligan [00:08:21] Well, I think many things in government, much like the definition of family violence, causes ordinary people to scratch one's head. What on earth is going on over here? I mean, that method of having ICBC withhold service to collect fines is used in other contexts. And in fact, the government uses that as a lever to try and ensure payment of things like spousal or child support or payment of other fines, because many people want to, of course, get their driver's license or insurance renewed. 

Adam Stirling [00:08:53] mhmm. 

Michael T. Mulligan [00:08:53] Although there are two other concerns with that approach, rather than the direct one, which would be just, you know, subtract the fine from other payments you might be sending them to them, it could be other government payments could be settled as well, tax refunds and so forth. But the Covid checks seem like just the clearest example of what ought to be utilized here. 

Adam Stirling [00:09:11] Yeah. 

Michael T. Mulligan [00:09:11] But the ICBC approach has at least two problems with it. One is that you're downloading a cost on to the insurance company to try to do your debt collection. And every time we load something on to ICBC, including driver's licensing or other things of that sort, it's really the equivalent of taking money out of ICBC to pay for other government services. 

Adam Stirling [00:09:38] hmm. 

Michael T. Mulligan [00:09:38] Because some of those functions, like issuing a driver's license, is not an insurance function. We've just decided to lump that into ICBC. And by doing this, the government is then relieved of the cost of needing to issue driver's licenses to people. And we do other things like we have ICBC pay for police, roadblock enforcement, for example. Well, is roadblocked enforcement a good idea? Perhaps, but should that be paid for by the insurance company? Not really an insurance function. 

Adam Stirling [00:10:11] hmm. 

Michael T. Mulligan [00:10:11] And so every time we have them perform some other task, we are doing the same thing is what we would be doing if we just took money out of the Crown Corporation and used it to pay for some other government function. But the second problem with that approach is that some people, of course, when they're told, sorry, you can't buy insurance, what do you think they do? They just keep driving without insurance. 

Adam Stirling [00:10:36] And they would, wouldn't they? Yeah. 

Michael T. Mulligan [00:10:37] And that's not in anyone's best interest. We want people paying for their insurance. So, it's kind of a collective responsibility. And so, I think, while it's understandable why they're taking that approach. They've used it in other contexts. And again, it's kind of like the police roadblocks sounds kind of tough. There would be a much better, simpler, cheaper to administer method of collecting these fines. And it's just subtracted the money from payments you’re sending out including the covid payments. 

Adam Stirling [00:11:06] hmm. 

Michael T. Mulligan [00:11:06] It doesn't seem too complicated. And so, you know, maybe they're paying attention. We can have another Miscellaneous Statutes Amendment Act to include that idea. 

Adam Stirling [00:11:15] Well, you never know. The day is young, it would seem. Michael Mulligan for Mulligan Defence Lawyers. Let's take our first break. We'll be back in just a moment as we continue going over the latest legal affairs news stories of the week. 

[00:11:28] COMMERCIAL. 

Michael T. Mulligan [00:11:28] Back on the air here at CFAX 1070. Michael Mulligan continuing our weekly segment, Legally Speaking, on CFAX, got a text message during the commercial break, Michael asking the question, why not send the fines as a bill at tax time, saying the same thing. A person for driving could stop them from getting to work to actually earn money, leading to that person being in a financially precarious position. What do you think? 

Michael T. Mulligan [00:11:50] Yes, they can certainly have that effect. And that's actually one of the tensions that exists when they withhold driver's license or insurance services from people for not paying child or spousal support. And there can be, in some cases, negotiations and tension over that, because, of course, if you had somebody for whom you know, somebody who didn't actually want to drive around without insurance and the effect of withholding the license of the person doesn't go to work any longer, that's not going to do much to ensure that the child or spousal support payments are coming in. And so, you can certainly have those adverse effects. And it does seem to me that ultimately we want people to pay for their insurance and not drive around uninsured. And so, it just there just are better, more sophisticated techniques. And I mean, the most obvious one is the don't send out the Covid money to people. Why in the world would you send a $1000 check by way of Covid relief to a person who has been convicted of breaching the Covid safety rules and hasn't paid their fines? It just doesn't make any sense that the government would be doing both of those things on, you know, in some cases the same day. 

Adam Stirling [00:13:06] Indeed. Our next story I find very interesting, because I wouldn't have expected there to be a difference in how members of the judiciary, as well as members of the legal profession such as yourself, would be entitled to doses of a Covid-19 vaccine. Given the requirement to participate in the criminal justice system as well as the civil justice system, help set this up for us. 

Michael T. Mulligan [00:13:27] Yes, indeed. And this came out last week. What's happened is in Vancouver, the government has decided to send priority access codes for vaccination, to judges and to crown counsel in Vancouver. They have not, however, and I should say that's good news, right? Because those people would be routinely exposed to people who often are individuals who would-be high-risk populations. Right. They're going to be physically in courtrooms and interviewing witnesses and dealing with complainants and hearing evidence from people who often, unfortunately, the people that are engaged in the criminal justice system, are often people that have other challenges in their life that may put them at greater risk of infection. And so that's good news. However, the government has not taken the same steps with respect to other participants in the criminal justice system. They haven't offered the same priority to court clerks or to sheriffs who are physically dealing with people, court registry staff who are dealing with people in person. And they haven't done the same for defence counsel that are in some cases doing things like working as duty counsel, which would mean helping all of the people who don't have representation. Often those people are from marginalized groups that would be at higher risk of infection. Yes. And it's also the case that many of those other justice system participants would be working in across boundaries, unlike Crown, for example, like there are defence counsel who would live in Vancouver that would have cases on Vancouver Island and some would be commuting back and forth over here doing those cases. Or sheriff's responsible for transporting people like, for example, we don't have any proper facility for women on Vancouver Island who are in custody. And so, women have to be transported over to the mainland, routinely back and forth, accompanied by sheriffs. 

Adam Stirling [00:15:34] yeah. 

Michael T. Mulligan [00:15:34] And so that just needs to be covered as well. And it's surprising that they made that selection. The other troubling aspect of it and of course, that occurred that decision occurred the same week as the report leaked about the Covid data that the government wasn't sharing with the public, that that secret report leaked out. And so that's troubling as well. And I should say both of those decisions know the decision not to release to the public all of the information they have about things and those sort of vaccination decisions that are not made in a transparent way are both troubling. And one of the reasons why they are so troubling and potentially counterproductive is that even though the decisions, I'm sure, are made with the best of intentions, like, for example, you know, well, we don't want to tell people, you know, like they do in Alberta, for example, they publish information about things like the ages and comorbidities that people have who have had severe outcomes from Covid. 

Adam Stirling [00:16:41] Yes,. 

Michael T. Mulligan [00:16:42] Right. What percentage of people suffered from hypertension or diabetes or respiratory diseases or cancer that have died or been hospitalized? That is shared in a detailed way in other places. B.C. doesn't share it. And the reason for that, no doubt, is to try to influence public behaviour. 

Adam Stirling [00:17:02] Yes. 

Michael T. Mulligan [00:17:02] If we don't tell people that information, it might encourage, for example, young people to comply with regulations. Right. Because you tell everyone here is a breakdown in age and comorbidity of people that have had these severe outcomes. Somebody might look at that and say, well, that's not me and I don't care about anyone else. So, I'm going to engage in some risky behaviour. And so those decisions are likely made with the objective of withholding data to impact on public behaviour. But the problem is that people are pretty smart, and information gets out, and like...

Adam Stirling [00:17:39] The problem is people are pretty smart. I want to put that on a T-shirt. 

Michael T. Mulligan [00:17:43] That's right. And so, what happens then is that people realize, hey, you haven't been telling me the whole picture. You've got this report with all sorts of data about where exactly the infections are. 

Adam Stirling [00:17:56] yeah. 

Michael T. Mulligan [00:17:56] Now that they've decided to release, but other things than they report. Like, you know, what percentage of people in different areas have been immunized, what percentage were eligible for other kinds of vaccines. All of this sort of more detailed data that they have, but they're not providing. What happens is then people who are skeptical about things like taking the vaccine. 

Adam Stirling [00:18:16] Yes. 

Michael T. Mulligan [00:18:16] When you have then Dr. Henry or Minister of Health or others come out and say, look, you can trust us. This is safe. You should take this. It causes people to say, well, hold on a minute, aren't you the same person who wasn't telling us the full picture about, you know, who was immunized or how old people were or where these infections were? Various things trying to influence our behaviour, and it undermines confidence. And when you undermine public confidence in public health information, you're going to have a long-term negative effect, even if you manage to modify behaviour by not giving people the full picture about what, in fact is going on. And so, I would hope that more is done than the shift that we've seen this week following the data leak last week to provide fulsome data to people about risks and where they are and who's at risk, at risk of what. That should be provided in a clear and transparent way. And I think we need to treat people as smart and we need to treat people in a way that would respect their ability to look at that information and make rational choices and assume not everyone is somebody who's not caring about others, are not prepared to take steps to protect other people. We're just not going to get what we need in terms of public compliance by deceiving people or not giving them the full picture. And we're not going to get there by threatening to withhold their driver's license or insurance. And we're not going to get there by setting up roadblocks. You need to have public buy in and trust, and you need to trust people that if you give them all of the pertinent information, which the government clearly has, that they are going to behave in an appropriate fashion. And moreover, if you do that and you're clear about who are we giving the vaccinations to and where have people been vaccinated and where haven’t and where there are serious outbreaks of illness. And if we are transparent about those things, you are much more likely to build trust and get the sort of compliance that we need. The solution is neither is it an enforcement solution or a threat solution, nor is it a withhold information that you think might cause somebody to act in a way that you don't want, over the long term. That is genuinely harmful. And so, I hope that that approach changes for the sake of all of us, and in particular with respect to the vaccination decision that they made, I hope they are clear about why they've done that and what they did and why they have done other things so that there can be questions asked and scrutiny about it. Doing it in secret and not telling people is not a wise long-term strategy. 

Adam Stirling [00:21:10] Indeed, although it feels like all the strategies that we've adopted so far are not sustainable over the over the long term, I feel like we're in one of those long-distance car rallies that you see on television from time to time going into X number of hundred kilometers. And I can see the finish line in sight and our car is falling apart, its engines almost totaled. There's a one flat tire. Things are falling off. And at this point, I'm saying just get us across that line before the car falls apart. I think that's the best I can hope for at this point. 

Michael T. Mulligan [00:21:39] Yeah, well, I guess they would say it's a noble effort. Right. But, you know, the approach of being clear and truthful and complete in terms of what you're telling people is I think over the long haul, a good way to keep that car rolling. 

Michael T. Mulligan [00:21:52] Indeed. 

Adam Stirling [00:21:53] Even though you might think in the short term, if you don't tell somebody about some problem or other or what the actual risk on the road is, you're going to somehow improve their behaviour over the long term. That's corrosive. So hopefully we get an increase in transparency after the embarrassment the government had last week. 

Adam Stirling [00:22:11] As always, the way that you clearly and calmly elucidate these matters, Michael Mulligan is greatly appreciated. Thank you for your time, as always. 

Michael T. Mulligan [00:22:19] Always a pleasure. Stay safe and look forward to talking soon. 

Adam Stirling [00:22:22] All right. Have a great day. Take care. 

Automatically Transcribed on May 18, 2021 – MULLIGAN DEFENCE LAWYERS