Legally Speaking with Michael Mulligan

Church vs City freedom of expression, anti-SLAPP in the BCCA, and Métis heritage in sentencing

July 23, 2021 Michael Mulligan
Legally Speaking with Michael Mulligan
Church vs City freedom of expression, anti-SLAPP in the BCCA, and Métis heritage in sentencing
Show Notes Transcript

This week on Legally Speaking with Michael Mulligan:

The City of New Westminster cancelled a meeting room rental that had been booked by The Redeemed Church of God for a "Youth Conference". 

The City of New Westminster has a booking policy that “restricts or prohibits user groups if they promote racism, hate, violence, censorship, crime or unethical pursuits.”

Following an email complaint that the Youth Conference would be an anti-LGBTQ event, the City of New Westminster made some online inquiries and determined that a speaker at the event had a large profile on social media and recent Facebook postings expressing anti-LGBTQ views. 

As a result, The City of New Westminster cancelled the room rental. 

The Redeemed Church of God complained about the cancellation and ultimately filed a petition in the BC Supreme Court to, amongst other things, ask that the cancellation be judicially reviewed and reversed. 

The request for judicial review was denied on the basis that the room rental was a contractual arrangement and not subject to judicial review. 

The judge hearing the case did, however, find that the City of New Westminster had breached The Redeemed Church of God’s right to freedom of expression because the city didn’t take sufficient steps to inform itself about the anticipated content of the Youth Conference to permit a balancing of competing rights to be conducted before making the decision to cancel the room booking. 

Also on the show, a decision from the BC Court of Appeal will allow a defamation claim against a former employee of a Vancouver cryptocurrency company to proceed to trial. 

The former employee had previously been successful in having the case dismissed pursuant to the Protection of Public Participation Act

This act, which was introduced in 2019, is intended to prevent unmeritorious civil claims from being used to prevent public criticism. 

The Court of Appeal concluded that the judge who dismissed the claim made a mistake in dismissing the claim because, if defamation is proven, damages are presumed to have occurred.

Finally, another Court of Appeal decision dealing with a sentence appeal by a Métis woman who was sentenced to nine months in jail for an assault causing bodily harm conviction is discussed.

The appeal was premised in part on an argument that the sentencing judge had failed to give adequate consideration to the woman’s background, which is expressly required by section 718.2 (e) of the Criminal Code. 

That section requires that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

In this case, the Court of Appeal concluded that that judge was not required to do more than they had, given the absence of information concerning the impact the woman’s Métis heritage had on her difficult background. 

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

Legally Speaking July 22, 2021


Adam Stirling [00:00:00] It's time for, Legally Speaking, joined as always by 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 [00:00:10] What's on the agenda for today? 


Michael T. Mulligan [00:00:12] Well, I tell you, nothing seems to slow the courts down. It doesn't matter about summer vacation, covid or anything else. They just keep churning out interesting decisions. The first one on the docket for today is a case that involved the Redeemed Christian Church of God versus the City of New Westminster. And the fact pattern is that the Redeemed Christian Church of God rented a ballroom from the City of New Westminster in a facility that they own. For the purpose of conducting what they describe as a "youth conference". Now, shortly before the youth conference was to begin, a member of the public sent an email to the city indicating that they believed the event would be an anti LGBTQ event. 


Adam Stirling [00:01:06] Hmm. 


Michael T. Mulligan [00:01:07] And asking the city not to allow the Redeemed Christian Church of God to conduct the planned youth conference. In response to that, the City of New Westminster made some internet enquiries. They looked at some postings by one of the people who is intended to be a speaker at the youth event and concluded that that person had expressed views that they viewed as anti LGBTQ. And then the city made reference to its booking policy, which permitted which prohibited user groups that promoted things including racism, hate, violence, censorship, crime, or unethical pursuits, from renting space from the city. And so, the City of New Westminster emailed the Redeemed Christian Church of God and said, your meeting room is cancelled, to which the representative from the church responded, hey, hold on a minute. You know, we've got some things to say about this. 


Adam Stirling [00:02:14] yes. 


Michael T. Mulligan [00:02:14] The city said, well, we'll happily talk to you, but that's not changing your decision that you're cancelled. And so, the result of that was a piece of litigation that produced a decision this week. And there are several interesting things about that case. First of all, the church brought its claim by way of what's referred to as a petition and not to get too deep into the weeds. But when you're starting something in the B.C. Supreme Court, when you want to go there to ask for something, one thing you could do would be to file a petition. Another thing you could do would be to file paperwork to start an action. 


Adam Stirling [00:02:53] Interesting. I didn't know there was a difference. I thought it was the same things. so now I learnt something new 


Michael T. Mulligan [00:02:57] So the action would get you off on a track that would eventually lead to a trial, you know, with witnesses and so on. Right. 


Adam Stirling [00:03:03] Yeah. 


Michael T. Mulligan [00:03:04] The petition would be something which would get you into chambers and it can be used to deal with a different category of requests. 


Adam Stirling [00:03:13] hmm. 


Michael T. Mulligan [00:03:13] And you would use a petition to, for example, do what the church was trying to do here. They saw it. One of the things they sought it was to conduct a judicial review of the city's decision to cancel the meeting room rental. And so, issues for the judge included the following interesting issues. First of all, is this the kind of thing which you can conduct a judicial review about? And on that point, the judge concluded no. 


Adam Stirling [00:03:42] hmm. 


Michael T. Mulligan [00:03:42] The judge concluded that this decision to cancel the meeting room rental wasn't the kind of government decision that somebody can conduct a judicial review about; to argue that it was unreasonable or outside of the statutory authority of the decision maker. The judge found instead that this was a contractual dispute. And if you're having an argument over a contract. Right, and whether you should get compensation for the contract being breached, the way to do that would be to start an action which would lead to a trial. 


Adam Stirling [00:04:12] Okay. 


Michael T. Mulligan [00:04:12] rather than a petition asking for something like a judicial review. So, the judge found that's just not quite right. They've got the wrong thing here. However, on a couple of other interesting points, the church was successful. First of all, there was an interesting issue about whether a church as an institution, because this was brought on behalf of the Redeemed Christian Church of God. 


Adam Stirling [00:04:35] mhmm. 


Michael T. Mulligan [00:04:36] Not some person there or some person who was going to attend the youth conference. And so, the church was arguing things like freedom of conscience, conscience, conscious conscience, and religion. And so interesting issues would arise there. Can an institution, a church, have a religion? Can an entity like that have that? 


Adam Stirling [00:05:00] I, I, I mean isn't that a necessary component of something being a church? I don't understand. 


Michael T. Mulligan [00:05:05] Well, I mean, people at the church could certainly ice Légion, but the whole church itself of a religion. It'd be like that's been an issue, for example, in the United States, which you might have heard of. I think there's a place that's a supply store for. 


Adam Stirling [00:05:22] Hobby goods. Yeah,. 


Michael T. Mulligan [00:05:23] hobby, that's it. 


Adam Stirling [00:05:23] Yeah. 


Michael T. Mulligan [00:05:24] And so one of the issues in the US was it came this hobby store, the store, not the person who owns the store or the people working at the store, can the store have a religion? 


Adam Stirling [00:05:34] Interesting.


Michael T. Mulligan [00:05:34] Can we interfere with that and so on. That interesting point the judge in this case found, yes, indeed, the church itself, rather than people who go to the church, can, in fact make a claim for freedom of religion. And so that was that part was successful for the church. So that's an interesting point. And as well, the judge found that the church is right, the institution itself, its right to freedom of expression, was, in fact breached by the city of New Westminster and it was breached on the basis that the city, while the judge found was doing a laudable thing in terms of trying to protect minority rights. If this did appear to be the kind of anti LGBTQ meeting that was alleged. The city had failed to engage in a proper balancing exercise and in particular by failing to allow the church to, you know, provide information about that. So, the judge said, look, the city should have responded to the church saying, look, we've got this allegation. What exactly is it you want to be talking about here so we can make a balanced decision about whether to cancel your booking or not? 


Adam Stirling [00:06:51] I see. 


Michael T. Mulligan [00:06:52] And they didn't do that. They said, we'll talk to you, but your booking is just cancelled regardless. 


Adam Stirling [00:06:57] hmm. 


Michael T. Mulligan [00:06:57] And so on that point, what the church was able to get was because this was a petition declaratory relief that the judge essentially saying; yes, indeed, your rights were breached in that regard, but it doesn't produce an order that anything come from it other than that declaration, which you would expect to inform the city in terms of how it would behave in the future. And the judge did, however, say that, look, if the church wishes to pursue its claim that its religious freedom was breached, it would be free to convert this petition into an action and to therefore allow a trial to occur because with a trial, which is something has to be started by the action, and not a petition would allow, for example, evidence about, well, what are the religious beliefs of the church? And that there just wasn't a basis for that on a petition. On a petition would be sort of affidavit evidence to deal with things, unlike what would ordinarily occur at a trial. 


Adam Stirling [00:08:05] I see. 


Michael T. Mulligan [00:08:06] And so the judge said, look, the affidavit material here doesn't particularly to unpack, well, what are the religious beliefs, other than a general statement that the church's religious beliefs involve the biblical view of sexuality and that being engaged. Which (indiscernible), they just can't make a decision on the basis of that scant information. And so, it is a really interesting decision. It does come to that conclusion that the city should have approached this in a different way, in particular allowing the church an opportunity to explain what it was doing before making its decision. And interesting because it found that the church was free to have a religious view from a constitutional perspective. There could be freedom of religion for an institution, not just a human being. In that regard the judge was relying upon things, including the definition of what a person is under the Interpretation Act and the interpretation as any person includes a corporation. And so that is what has found in that novel conclusion in Canada about whether this entity is able to bring that kind of a claim. 


Adam Stirling [00:09:14] Now, I wonder if we wonder... I wonder if a church as an entity that has a right to religion, therefore has a right to change its religion. Could a Catholic Church decide that it doesn't want to be Catholic anymore? Could it become another denomination? Could it become atheist? That would be like it's interesting to think of the church itself independent from any person who is a parishioner there or who worships there could have its own religious belief and how that would be determined. 


Michael T. Mulligan [00:09:40] That's interesting. And another interesting point is that the freedom, freedom of religion includes a freedom not to be religious. 


Adam Stirling [00:09:47] Yes. 


Michael T. Mulligan [00:09:48] Right. And so that would raise some interesting issues as well. You know, what about some company that says, look, this company's Religion is a freedom from religion, and so therefore we don't want to permit any religious activity whatsoever in our facility. Now, that wouldn't engage the constitutional considerations here. And the reason this can be subject to these constitutional considerations is because, of course, the city of New Westminster is a governmental entity. 


Adam Stirling [00:10:18] I see. 


Michael T. Mulligan [00:10:19] And that's why all of those various things would apply. However, if you had freedom of religion, that could apply to a corporation and the way that I just indicated, let's say a hotel chain says, you know, we are Christian and we refuse to therefore allow people to rent rooms from us if they are of a different religion. That's likely to engage, of course, human rights considerations. 


Adam Stirling [00:10:41] Yes. 


Michael T. Mulligan [00:10:41] Human rights legislation. But it wouldn't engage a constitutional analysis because constitutional rights apply to the government, not what some hotel or hobby store might choose to do to you. And so, this certainly is going to be an interesting case to watch. And it'll be interesting to see whether the church decides to pursue the matter by way of an action and a trial to deal with those religious freedom issues or whether the church would say, look, we're satisfied. We've got the declaration that the city of New Westminster didn't deal with this properly. They should have given us an opportunity to, you know, make submissions about what this conference is going to be about before they just go off and cancel it on us. And I must say, in that regard, I did note that the booking policy does prohibit groups that promote censorship. So, you know, there should be, at least, I think, some sensitivity given to that. And, of course, what government makes decisions. It's important that there be procedural fairness. Right? 


Adam Stirling [00:11:45] yes. 


Michael T. Mulligan [00:11:46] Even if you don't succeed at the end of the day, you know, fairness dictates, procedural fairness, dictates things like giving the other side an opportunity to be heard. 


Adam Stirling [00:11:55] Yes. 


Michael T. Mulligan [00:11:55] Even if at the end of the day, the City of New Westminster says, I'm terribly sorry, we're not having this event here, it violates our policies and we're deciding that. It's a different thing to make that decision after hearing from both parties, as it would be in this case, which was receiving the complaint, doing some investigation, and making a decision and then saying, well, we'll talk to you, but our decision is final, right? 


Adam Stirling [00:12:19] Yeah. 


Michael T. Mulligan [00:12:20] Which is, I think, how they ran up on the rocks here. So, it's not to say that it was inappropriate. The conclusion necessarily was a wrong one. It could be that the conference, proposed conference would be in violation of the booking policy and the city made the correct decision. But before making that decision, they at the very least, should have allowed the church to explain what it was doing and what was going to be talked about so that the city could then make an informed decision and balance the interests involved. And that's the part which they didn't get right here 


Adam Stirling [00:12:52] Michael Mulligan with, Legally Speaking. Let's take our first break. When we come back, we'll have more interesting cases in the news, including a case regarding a defamation claim, a cryptocurrency company, and the Protection of Public Participation Act, commonly known as the anti SLAPP legislation. What happened? Find out after this. 


[00:13:12] COMMERCIAL. 


Adam Stirling [00:13:12] All right. We now return to Legally Speaking on CFAX 1070, joined with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers Michael, a rather novel case, at least in its fact pattern. Up next, we have a defamation claim. We have a cryptocurrency company. We have an appeal. We have the Protection of Public Participation Act. Set this up for us. 


Michael T. Mulligan [00:13:32] Yeah, I must say, you just can't make some of these things up. So, this case started with this cryptocurrency company and a fellow that was hired to work for it to do some computer programming, who left after a couple of months and seemed to be disgruntled with the circumstances that the company, the disgruntled former employee, sent a complaint to people, including the police. And the complaint to the police allege that the company was engaged in illegal activities and was a front for various things. So, this quite serious claims made by the former employee. And eventually, I think perhaps as a result of e-mail complaints this fellow was sending out, there was in fact, an investigation started with respect to possession of the proceeds of crime. And there was an interim order obtained that resulted in the newspaper story and caused the demise of the company ultimately. And so that produced a defamation claim by the company and a couple of its principals, suing the former employee for defamation, claiming massive damages for the damage to their reputation and so forth. And the former employee made use of the legislation that you mentioned previously, which is the Protection of Public Participation Act, sometimes called the anti SLAPP legislation that came into effect in 2019. And what that legislation does is that it provides that, provides for defendants, who are being sued on the basis of something they said, an expression they made, to bring an application to a judge prior to a trial alleging that the claim is based on something they said in expression. So, in this case, the email. 


Adam Stirling [00:15:28] Yes. 


Michael T. Mulligan [00:15:29] And if they can show that that's the basis of it and the matter was a " a matter of public interest" then the burden shifts over to the, the parties suing, the company in this case, to satisfy the judge of a number of things if they want to have their litigation continue. 


Adam Stirling [00:15:52] Yes. 


Michael T. Mulligan [00:15:52] And the purpose of that was to try to stop, say, some big, nasty company from suing everyone who says anything bad about it to run up legal fees or to discourage people from, you know, commenting on matters of public interest right. That's why this was introduced. And so, once you establish the person who's being sued, establishes that the claim is based on something they said, an expression and it was a matter of public interest, then the other side has to show that if they have to establish for the judge that the claim has substantial merit, that there's no valid defence to it. And then there's a weighing the judge that has to weigh whether the claim of harm is serious enough that the public interest in continuing with the proceedings outweighs the public interest in protecting the expression. 


Adam Stirling [00:16:43] Yes. 


Michael T. Mulligan [00:16:44] So it involves this weighing by a judge prior to a trial to determine should this thing be allowed to carry on. And I suppose, you know, when we look at that, all of us might be one of those things that you look at and say, well, you know, I kind of know it when I see it. 


Adam Stirling [00:17:00] mhmm. 


Michael T. Mulligan [00:17:00] It does seem like a bit of a challenging test for a judge, particularly when they're only going to have limited information. There's been no trial, of course,. 


Adam Stirling [00:17:07] absolutely.


Michael T. Mulligan [00:17:08] If you're trying to decide this in a vacuum at the beginning. 


Adam Stirling [00:17:11] Indeed. And there can't be a deep dive as Supreme Court of Canada recently dealt with on these matters because of the limited nature of an anti SLAPP motion itself. 


Michael T. Mulligan [00:17:19] Yeah, right. The whole thing would be pretty meaningless if it just turned into the trial right then and there. Right. Now, what have we saved? 


Adam Stirling [00:17:26] yeah. 


Michael T. Mulligan [00:17:26] Great. If you have to have a two-week hearing about this thing, well, now you've just kind of made the trial sooner. probably would probably defeat its purpose. And so, in this case, the disgruntled former employee that sent the email was successful in getting the claim struck out, but that wasn't the end of it. The cryptocurrency company appealed, and they succeeded on the appeal. 


Adam Stirling [00:17:50] hmm. 


Michael T. Mulligan [00:17:50] And so they will now be permitted to carry on with the defamation claim against the former employee and the success involved, the Court of Appeal sort of analyzing the elements of defamation and whether there could be a presumption of harm; where there's a defamatory statement. And the Court of Appeals concluded that indeed once you show the elements of defamation. There is a presumption of harm occurring. And the analyzed as well, and this is part of that issue of whether there is any defence to it and the merits of the claim. The Court of Appeal referred to the law surrounding what's referred to as qualified privilege with respect to statements made to the police, like reporting some apparent crime. 


Adam Stirling [00:18:40] Interesting.


Michael T. Mulligan [00:18:40] And let's say, for example, you phoned the police and say, hey, that looks like Mulligan out there breaking into a car. 


Adam Stirling [00:18:46] Yeah. 


Michael T. Mulligan [00:18:47] Right and the police come and do some investigation. It turns out I was turning off somebody's lights or that was my car or something. Even though you've made some statement that could harm my reputation and you published it by, you know, sending that to the police, you would have qualified privilege that would prevent me from suing you for that statement. However, the qualified privilege doesn't apply, it is defeated, if the dominant motive for the statement was malice 


Adam Stirling [00:19:14] Yeah, it can't be actuated by malice. Exactly. 


Michael T. Mulligan [00:19:16] Yeah, yeah. You can't just say, look, I'm just here to try to, you know, ruin Mulligan's reputation. And so, I'm going to start making false allegations to the police. 


Adam Stirling [00:19:24] Yeah. 


Michael T. Mulligan [00:19:24] It's not a crime, public mischief, but would also be actionable. You could be sued for it. And so, the Court of Appeal analyze that and then analyzed as well that issue with respect to harm in a defamation case and found that the judge had made an error with respect to her analysis of the whether the harm was demonstrated there that would go into that balancing of whether the claim is serious enough that it would outweigh the public interest in protecting expression. And so, on the basis of that analysis. The Court of Appeal has found that indeed this claim can proceed and it's an important case because it gives us some insight into how judges are to apply the Protection of Public Participation Act and sort of how that should be analyzed. And that may have an impact on things going forward. So, an important decision just out yesterday from the Court of Appeal. 


Adam Stirling [00:20:18] Very interesting. We have two minutes and 10 seconds left in our time today. How shall we spend them? 


Michael T. Mulligan [00:20:24] Sure. I think I can tell you about the final case and about that time. The final case I wanted to talk about was an unsuccessful sentence appeal by a Metis woman who was sentenced to nine months in jail for a serious assault. The issue on the appeal was whether the trial judge, doing the sentencing had given adequate consideration to the fact that she was Metis. And in that regard, there are there's a specific section that we've talked about before in the criminal code that requires there to be consideration of alternatives to incarceration, particularly for Aboriginal people, owing to, of course, the complete overrepresentation of Aboriginal people in prison and systemic and other discrimination that Aboriginal people have faced. And so, the woman here who was sentenced to the nine months in jail was arguing that, hey, the judge hadn't spent any time analyzing some before serious challenges in her life, including things like an absent father, parents who struggled with alcohol. Her experience with sexual violence and substance abuse. And the Court of Appeal here, unfortunately for her, didn't accept that argument in the Court of Appeal said those kind of unfortunate circumstances are often linked to general mistreatment of people other than indigenous people and are common unfortunately, outside of that context. And I should say, I think the important issue that is raised here, and I don't think is settled by this case, is that the Court of Appeals said, look, it was okay. The judge made a general reference to that section dealing with Aboriginal people but found that there just wasn't enough evidence about that and nothing more needed to be said about it. And I think the best way to look at the case is to serve as a cautionary one for judges and counsel involved with these things. And, while the Court of Appeal didn't talk about that. Perhaps the real takeaway here should be those of us involved with these things, judges or defence counsel or indeed Crown should be alive to what they call the Gladue considerations and that section of the criminal code to make sure that those kinds of issues, which may well be linked to persons indigenous background, are squarely put before a trial judge, and taken into account. And so, I think it is a significant case in that regard. 


Adam Stirling [00:22:48] Okay. 


Michael T. Mulligan [00:22:48] Even though it didn't result in a change of the sentence for this person. 


Adam Stirling [00:22:51] That's all the time we have for this week for, Legally Speaking, Michael Mulligan, for Mulligan Defence Lawyers pleasure, as always. We'll talk to you next week. 


Michael T. Mulligan [00:22:57] You as well. Have a great week. 


Adam Stirling [00:22:59] All right. Talk to you then. 


Automatically Transcribed on July 28, 2021 – MULLIGAN DEFENCE LAWYERS