This week on Legally Speaking with Michael Mulligan:
An increasing number of jurisdictions, including New York, Quebec, France, and Israel are prohibiting people who are not vaccinated for COVID-19 from being in public places where people are in close contact, such as restaurants, bars, concerts, and museums.
In Canada, the federal government has announced that it will be providing electronic vaccine passports to facilitate international travel, as well as provincial restrictions such as those being imposed in Quebec.
In British Columbia, the Public Health Act provides authority to prohibit people who have not been vaccinated from engaging in activities or entering places such as restaurants. These provisions are found in section 16 of the Public Health Act.
Other possible restrictions would include not permitting unvaccinated people from attending in-person classes at universities or residing in university student housing. The University of Ottawa has made COVID-19 vaccination mandatory for students, staff, and faculty.
Section 15 of the Public Health Act is also discussed on the show. This section makes it an offence for anyone to “willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard.”
Also on the show: pepper spray is a prohibited weapon in Canada. This means that simply possessing pepper spray can result in a criminal conviction, even if it’s not used. Because the theoretical maximum penalty for possession of a prohibited weapon is 10 years in jail, someone who is not a Canadian citizen could end up being deported, without a hearing, if convicted of this offence.
The regulation that makes pepper spray a prohibited weapon described what is prohibited in this way:
1. Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of
(a) tear gas, Mace or other gas; or
(b) any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.
The BC Court of Appeal has considered this section and concluded that even though something like Mace, which is designed for self-defence, is prohibited, bear repellant, which may be the same substance in a larger bottle, would not be prohibited because it’s not “designed” to injure or immobilize a person.
Even though bear spray may not be a prohibited weapon, it could still be a weapon and therefore constitute an offence if someone were to carry it in a concealed manner, or for a dangerous purpose.
A sentencing decision involving pepper spray is also discussed on the show. It involved an altercation between an 86-year-old and a 57-year-old man shopping at Costco in Vancouver. Following an alleged elbow bump in a doorway, the 86-year-old man pepper-sprayed the 57-year-old man. Despite having pepper spray in his eyes, the 57-year-old ran after the 86-year-old and pushed him with both hands from behind.
The 86-year-old man fell, hit his head, and died. The 57-year-old was convicted by a jury of manslaughter and sentenced to 18 months in jail.
This case may have formed part of the basis for the federal government’s rejection of Alberta’s recent request to legalize pepper spray for self-defence.
Follow this link for a transcript of the show and links to the cases discussed.
Legally Speaking Aug 12, 2021
Adam Stirling [00:00:00] 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 [00:00:08] I'm doing great. Always good to be here.
Adam Stirling [00:00:10] What is on the docket today? Because I have had some fiery conversations, Michael, this week with various members of the public with respect to the legality and indeed the morality of mandating covid-19 vaccinations. What does the law say about that?
Michael T. Mulligan [00:00:25] Well, this is what it says in British Columbia, we've got an act called the Public Health Act, and there are two particular sections of that. Well, perhaps more, but two particularly relevant sections. There is one section that people should be aware of in Section 15 of the Public Health Act and Section 15 of the Public Health Act says this "a person must not willingly cause a health hazard or act in a manner that the person knows or ought to know will cause a health hazard." And so, to do otherwise would be to commit an offence. And so, people should be aware that if they are behaving in a fashion which is creating a health hazard or they ought to know would create a health hazard, which makes it an objective thing, even if the person claimed to subjectively not think that they are causing some hazard by, you know, for example, being unvaccinated or being in close contact with other people. There is an argument that they would be in violation of Section 15 of the Public Health Act with nothing more being done. That's a general obligation all of us have.
Adam Stirling [00:01:34] hmm.
Michael T. Mulligan [00:01:34] There are also specific provisions, including in Section 16 of the Public Health Act, that permit the government to order people to be vaccinated. And it is on a list of various preventative measures that Section 16 permits the government to impose, the first of which is being treated or vaccinated. Various other things are permitted as well, taking preventative medication, washing, you know, doing undergoing disinfection, wearing types of clothing like the mask. It can clearly regulate that you put on a mask or be vaccinated.
Adam Stirling [00:02:08] Yes.
Michael T. Mulligan [00:02:09] Now, I should say in that regard, there is a provision in the Public Health Act for a person to object to those kinds of measures for reasons of conscience. Right.
Adam Stirling [00:02:21] mhmm, yes.
Michael T. Mulligan [00:02:22] Or if they have a belief that they're going to harm their health. But what the way that is dealt with is that a person who sold drugs can still be subject to a prohibition on going to a place or doing a thing that's prohibited by the regulations. And so, what that would permit would be something like what's going on in Quebec, New York City, France, various other places where whereby the government can say, for example, I direct everyone to be vaccinated if you wish to enter restaurants or concerts or museums or public spaces or the university, for example.
Adam Stirling [00:03:00] Yes.
Michael T. Mulligan [00:03:01] Or university for in-person classes. And you could have somebody making an objection to the vaccination. But the result of that could be simply you just can't go to those places, which is how it's going to be dealt with in New York City and France and Quebec and I suspect other places as well. And the way they're dealing with it is, look, if you choose not to get vaccinated, you're creating a hazard for other people when you're in close quarters. And so, you're simply not going to be able to participate in those kinds of activities. And you can see that coming, in Canada, the government announced, I think just yesterday the federal government that there are going to be vaccine passports, which are intended for international travel. Most other countries are going to require proof of vaccination if you wish to get into them. Canada does, of course. Right. We don't we're not allowing unvaccinated tourists to show up here, but we're now starting the process of allowing people who were vaccinated to come here. And so, in order to facilitate, Canadians being able to go to other countries who have similar requirements, the federal government has announced they're going to provide for sort of a common certification of that so other countries could be confident that the vaccination was real. And they've indicated that provinces, if they wished, would be able to make use of those federal vaccine passports for other purposes. And so, Quebec, I think, was starting with their own provincial process, but it seems likely that that will wind up getting folded into the federal one and that will be the state of affairs in a growing number of places. Right.
Adam Stirling [00:04:45] yes.
Michael T. Mulligan [00:04:45] If you object to taking measures to keep other people safe. You may well find yourself unable to congregate in a way and in places where that may present an increased risk to other people. And of course, that's ordinarily the line in which over which the government would quite reasonably have the capacity to regulate people's activity.
Adam Stirling [00:05:11] mhmm.
Michael T. Mulligan [00:05:11] Right. If you wish to sit at home and not be vaccinated, you probably don't pose much of a risk to people.
Adam Stirling [00:05:18] indeed, yes.
Michael T. Mulligan [00:05:18] Perhaps health care, perhaps health care workers or something if you do get sick. But, you know, it seems to me seems to me, given all of the information we have, if you're somebody who chooses not to be vaccinated and then tries to show up in close quarters with other people, there is a I think, a readily identifiable risk you're posing to others. And that's the point at which, of course, the government, I think, can legitimately intervene not just to protect you, but to protect other people from harm you might inflict.
Adam Stirling [00:05:53] yeah.
Michael T. Mulligan [00:05:53] Since you've got a perfect right to sit at home and drink all the alcohol you want, but you don't have the right to then hop in your car and drive around town, because that's the point at which you're posing a risk to other people. And that's ordinarily the standard that the government is going to apply when deciding whether to regulate activity. So, it seems like a clear trend. We already have the legislation in place in British Columbia. It doesn't require any legislative changes. The government could implement that tomorrow if they wished. And, you know, we can clearly see a trend happening in other countries and places. And so, it seems likely that we're going to be hearing more of Section 15 and 16 of the Public Health Act likely over the next number of weeks and months, once everyone's had a full opportunity to get vaccinated in order to deal with the small number of people that are resisting that so as to prevent them from engaging in activity that poses a risk to other people.
Adam Stirling [00:06:56] indeed and also themselves. Now, I wanted to ask you about Section 15 willingly cause a health hazard or act in a manner that a person knows or ought to know will cause a health hazard. There's a word I don't know how to pronounce it, Michael, because I've only ever read it in a book. Is it scienter, a legal term about intent or knowledge of wrongdoing?
Michael T. Mulligan [00:07:14] Well, in this particular section, it uses this language knows or ought to know.
Adam Stirling [00:07:18] Yeah. So how do you decide how they really ought to know? Yeah.
Michael T. Mulligan [00:07:22] Yeah, that's a good question. I mean, that would be referred to for legal perspective as sort of an objective test rather than a subjective one.
Adam Stirling [00:07:30] Okay.
Michael T. Mulligan [00:07:31] The purpose there is that if you were prosecuting somebody for breaching Section 15 of the Public Health Act, you wouldn't need to prove, and indeed, it wouldn't be a defence if the person simply said, I didn't know that covid was transmissible.
Adam Stirling [00:07:43] mhmm.
Michael T. Mulligan [00:07:43] Right. That that wouldn't do it. The issue would be would you ought to have known that you were causing a health hazard. So, let's imagine somebody is told, OK, you've just been tested for covid. You came back positive, right? If the person claimed well I had no idea that was a problem, I decided to then go to the restaurant downtown and cough up a storm. I think in the current climate with sort of the saturation media coverage over this issue, you'd have a pretty tough time arguing that somebody in that circumstance would at least meet the objective criteria. Ought to know that you're causing a health hazard. Right?
Adam Stirling [00:08:21] mhmm.
Michael T. Mulligan [00:08:21] I think in 2021, if you had some reason to think that you were infected and you decided to go and get in close contact with other people, I think you're captured by Section 15, I should say Section 15 is in force. That's not a matter of might the government implement it, might be not implemented. It is currently and right now you're committing an offence if you act in a manner that you know or ought to know will cause a health hazard. And frankly, there would be an argument to be made about that section currently in terms of somebody who was refusing to get vaccinated and continuing to go out in public. Right. If you're sitting at home right now, you're not causing a particular hazard to anyone but somebody who says, I'm not doing it and I insist upon getting in close quarters with other people, I think at least to some argument that you're breaching Section 15. But I think what we're going to see is Section 16 and probably some form of specific orders like it is going like are going on in other places. It seems to me a pretty challenging argument, challenging circumstances. Vaccines are widely available, freely available to everyone. And everyone's had lots of time to get them. To have some people say, I refuse to do that. And I still wish to show up in close quarters with other people in a circumstance which science would tell us poses a risk not only to themselves, but to other people, both vaccinated and unvaccinated, because, of course, the vaccines are not 100 percent effective. And so, when you have somebody who says, look, I insist upon that kind of behaviour, it seems to me that this provision that we currently have may well be implemented like they're being implemented in all of these other jurisdictions. So, it seems to me that's clearly on the horizon and we see it being implemented in many other places currently.
Adam Stirling [00:10:18] Very well. All right. Let's take our first break. Michael Mulligan will continue offering us the benefit of his legal analysis and insight on these matters, Legally Speaking, continuing right after this commercial break.
Adam Stirling [00:10:29] Back on the air with CFAX 1070 continuing our conversation with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. What's next on the agenda, Michael?
Michael T. Mulligan [00:10:37] Pepper spray.
Adam Stirling [00:10:38] Pepper spray.
Michael T. Mulligan [00:10:39] Two words. Now, I should say, I think this is a topic that people should be aware of because the law surrounding the possession of pepper spray is a bit ambiguous. And the consequences of having it or having a type of it or in circumstances where you shouldn't, can be severe. And both a recent case about it and some effort in Alberta to change the law surrounding pepper spray. And so, the place to start is that in Canada, we've got regulations that set out weapons that are prohibited. They would include things like machine guns, flamethrowers, switchblades, brass knuckles and indeed pepper spray.
Adam Stirling [00:11:22] hmm.
Michael T. Mulligan [00:11:22] And the particular regulation defines it this way and says "any device that is designed to be used for the purpose of injuring, immobilizing, or otherwise incapacitating any person by the discharge thereof of various things..."
Adam Stirling [00:11:39] Mhmm.
Michael T. Mulligan [00:11:40] "...any liquids, spray powder or other substances capable of injuring or immobilizing or incapacitating a person." That is the definition or some,.
Adam Stirling [00:11:49] Interesting.
Michael T. Mulligan [00:11:49] definition that prohibits that person from having that. And so, the mere possession of a pepper spray, which is for the purpose of that, for that purpose, is a crime.
Adam Stirling [00:12:03] hmm.
Michael T. Mulligan [00:12:04] It would be like possessing a machine gun or a switchblade. And in that regard, I should say that particular offence of possessing a prohibited weapon theoretically carries a maximum penalty of up to 10 years.
Adam Stirling [00:12:16] yeah.
Michael T. Mulligan [00:12:16] And that is significant under the Immigration and Refugee Protection Act, because what that means is that if you're convicted of that offence, even if the judge gave you a fine or something, right. As a result of it, it is considered serious criminality under the Immigration and Refugee Protection Act, which can lead to automatic deportation for somebody who's not a Canadian citizen. And so, a woman carrying mace in her purse, that meets the definition of a prohibited weapon, could find herself deported without a hearing if convicted of that offence. And so, it can have major unforeseen consequences for people. Now, that definition is an interesting one, because you might say to yourself, what about bear spray?
Adam Stirling [00:12:57] Yes, indeed.
Michael T. Mulligan [00:12:59] The Court of Appeal had to struggle with exactly that issue in terms of, well, what about, you know, why is this a prohibited weapon and where does bear spray fit into it? Or, you know, the coyote deterrent or something else?
Adam Stirling [00:13:13] Indeed, to deter is not necessarily to incapacitate. Interesting. Okay.
Michael T. Mulligan [00:13:18] So the way the Court of Appeal is addressed, that is they've talked they've focused on the language here of that regulation that I referenced. And it has to do with the purpose that the device was designed for. And so even though bear spray might be exactly the same substance that would be in Mace, right?
Adam Stirling [00:13:38] Yes.
Michael T. Mulligan [00:13:39] One is designed for the purpose of protecting you against bear. Right. It would say, you know, bear deterrent. It might be a big camp, whereas the very same substance could be contained in something else labelled self-defence spray. One is prohibited. The other is not. And so even though a very similar thing may not be a prohibited weapon, that is how the regulation is worded. And so, you are permitted to have bear spray, for example, to go hiking in the woods. That's not a prohibited weapon. But I should say this. Don't think that, oh, that'll be fine. And I'll just get a big can of something labelled bear spray and carry that around in my purse.
Adam Stirling [00:14:21] Indeed.
Michael T. Mulligan [00:14:21] As the prohibition on possessing a prohibited weapon is not the only prohibition in the criminal code.
Adam Stirling [00:14:29] Okay.
Michael T. Mulligan [00:14:29] There are other sanctions, which would include carrying a concealed weapon that's a crime.
Adam Stirling [00:14:35] mhmm.
Michael T. Mulligan [00:14:35] Or possession of a weapon for a dangerous purpose, that's a crime. And then in that those kinds of circumstances, it would turn on. Why do you have that, right? If you have the thing labelled bear spray and you’re out hiking, and Banff is probably not going to be a whole lot of question about why you've got that in your backpack for.
Adam Stirling [00:14:52] Yes.
Michael T. Mulligan [00:14:52] But if you've got the very same thing in your purse at a bar and you've got it for the purpose of self-defence, now suddenly what you're carrying around there is a weapon, right? It's the difference between having a knife in your pocket for fishing and having your knife and knife in your pocket in case you get into an altercation in the bar. You can't carry a concealed weapon. Right. You can carry a fishing implement, though. And so, it would turn on why you've got it. And the way you've got it could turn on things like the circumstances or how, in fact, somebody did use the thing or in some cases what a person says about it right. The officer says, why do you have that? Oh, that's just for self-defence. Well, you just told me it's a weapon.
Adam Stirling [00:15:35] I was going to say. Call your lawyer. Yeah, exactly.
Michael T. Mulligan [00:15:39] Why do you have that fishing OK? Well, that doesn't seem to be a weapon, right? Although I guess it might lead to other questions if your fishing trip was in a downtown bar.
Adam Stirling [00:15:48] Yes.
Michael T. Mulligan [00:15:49] Now, I should tell you, there's a recent case out of Vancouver that. Oh, and I should say this Alberta made a suggestion just last month to the federal government asking them to remove pepper spray from the list of prohibited weapons in the regulation.
Adam Stirling [00:16:03] Interesting.
Michael T. Mulligan [00:16:04] And they made that suggestion on the basis that women and minorities ought to be able to carry it as a self-defence tool. The federal government responded negatively to that suggestion. And so, there was, in fact, no change despite Alberta's request. And the other case I wanted to mention, sentencing case, which just came out, perhaps informs that decision. It involves pepper spray. And this is a sentencing case that just came down out of Vancouver. And the fact pattern, there was a couple of people were off Christmas shopping. One was an 86-year-old man. Another was a 57-year-old man with a 16-year-old daughter. They wound up having some minor altercation, some alleged elbow bumping or something going through the door. Maybe they were rushing for the sale item or something.
Adam Stirling [00:16:54] Yeah.
Michael T. Mulligan [00:16:54] But the 86-year-old man pulled out a can of mace that he had been wearing around his neck and repeatedly pepper sprayed the 57-year-old man in the face, also hitting a 16-year-old daughter.
Adam Stirling [00:17:09] I'm sorry. I shouldn't laugh, That's just so shocking.
Michael T. Mulligan [00:17:12] Well, the 57-year-old was partially blinded, but stumbled about the 86-year-old started to walk away. The 57-year-old followed him for 17 feet and pushed him with both hands in the back. The 86-year-old fell.
Adam Stirling [00:17:29] on no.
Michael T. Mulligan [00:17:30] Over hit his head.
Adam Stirling [00:17:31] on no.
Michael T. Mulligan [00:17:31] And died.
Adam Stirling [00:17:31] Oh.
Adam Stirling [00:17:32] So 57-year-old man was charged with manslaughter.
Michael T. Mulligan [00:17:36] Yeah.
Adam Stirling [00:17:37] And a jury convicted him.
Adam Stirling [00:17:40] Wow.
Michael T. Mulligan [00:17:41] The manslaughter doesn't require an intent to kill. Right. It requires an unlawful act, which is dangerous. And it has the effect of causing somebody's death. And the analysis the jury would have had to follow to convict the 57-year-old would be that because the 86-year-old, even though he had provoked him by pepper spraying him in the face, had walked away. And so, at that point, when the 57-year-old was responding by coming in, pushing him, he wasn't defending himself. Right. He was getting back at, presumably the 86-year-old for having pepper sprayed him. Perhaps understandable, but not a defence. And so, he was convicted, by the jury. And then that led to the judge having to decide, you know, what sentences to be imposed on the 57-year-old man convicted by the jury of manslaughter. And the judge went through a series of cases that I think could be fairly described as a series of unfortunate events which led to other manslaughter convictions. One was a person who pushed somebody else who fell into oncoming traffic and got hit by a bus.
Adam Stirling [00:18:50] hmm.
Michael T. Mulligan [00:18:50] Another case was a fight over a spilt beer where there was some punch that caused the person to die. Another one was a man who swore at the person at a bar and got punched once and head injury and dead.
Adam Stirling [00:19:07] Wow.
Michael T. Mulligan [00:19:08] So there's this whole series of sort of unfortunate events, sometimes referred to as one punch manslaughter cases.
Adam Stirling [00:19:15] Yes.
Michael T. Mulligan [00:19:15] As a group. And so, the judge analyzed all of those decisions and the sentences that were imposed. And so in the case that I'm referring to from Costco, the net result for the 57 year old father who got pepper sprayed and pushed the man is that he's been sentenced to 18 months in jail, followed by two years of probation and community work service, despite the fact that the 57 year old is described by the judge as a loving husband and father, a person of good character with nothing in his background that indicated a propensity for violence. And so, you know, it's one of those instances, of those are tough cases.
Adam Stirling [00:19:56] yeah.
Michael T. Mulligan [00:19:56] where you are, you know, you have to scratch their head about there's this tragic result. And, you know, there's every indication the 57-year-old was completely beside himself with the fact that this man had died. Describe the judge described him as having deep remorse for the fact that this man had died. And even though the fact the 86-year-old had clearly committed an assault by pepper spraying the 57-year-old in the face.
Adam Stirling [00:20:23] Yes.
Michael T. Mulligan [00:20:24] You know, so much of sentencing involves this sort of assessment of consequence. Yeah. And so, you know, even though in some other circumstance, if I think if the man had pushed the. Freedom and nothing had befallen him. Nothing would have occurred,.
Adam Stirling [00:20:40] No.
Michael T. Mulligan [00:20:40] Right, in fact, probably would have arrested and charged the 86-year-old with having committed an assault by pepper spraying somebody over an elbow bump.
Adam Stirling [00:20:47] Correct.
Michael T. Mulligan [00:20:48] But, you know, so much of these things depend on consequence here. The unfortunate consequence was he fell down and passed away. And so, his family lost a grandfather. And the 57-year-old will be sitting in jail at public expense for a number of months, not acting as a father or doing other things. Apparently, everything else in his life was pretty positive. And so, I guess perhaps that informed the federal government to say just say no to the Alberta proposal, that we ought to legalize pepper spray and encourage people to wear it around their necks lest they get into some confrontation. So, there it is with your pepper spray.
Adam Stirling [00:21:28] Absolutely. Michael Mulligan Thank you, as always, for the benefit of your knowledge and insight, Legally Speaking, every week during the second half of our second hour on a Thursday. We'll talk to you next week.
Michael T. Mulligan [00:21:37] Always a pleasure. Stay safe.
Adam Stirling [00:21:39] You too. Bye now.
Automatically Transcribed on August 13, 2021 – MULLIGAN DEFENCE LAWYERS