Legally Speaking with Michael Mulligan

Mayors call for more people to be kept in jail before trial and the BCCA said use of lose Vancouver Island rail line

September 16, 2021 Michael Mulligan
Legally Speaking with Michael Mulligan
Mayors call for more people to be kept in jail before trial and the BCCA said use of lose Vancouver Island rail line
Show Notes Transcript

This week on Legally Speaking with Michael Mulligan:

The mayors of Victoria and Esquimalt, who serve as co-chairs of the Victoria and Esquimalt Police Board, have issued a press release suggesting that to prevent police officers from being assaulted and to reduce criminal activity by mentally ill people, more people should be kept in jail before they have a trial. 

In Canada, people are presumed to be innocent. 

There is also a constitutional right not to be denied reasonable bail without just cause. 

The presumption of innocence would have little meaning if accused people were routinely kept in jail without a trial. 

Despite the presumption of innocence, a judge can require someone to remain in jail before their trial if it’s necessary to ensure they attend court, to preserve public safety, or to ensure confidence in the criminal justice system. 

When someone is released, either the police or a judge can impose conditions on them. These will often include conditions such as reporting to a bail supervisor, not possessing weapons, or not contacting other people. The conditions are intended to address concerns about attending court or to protect public safety. 

In Victoria, there has been an increase in property and other crimes associated with an increased population of homeless people who often suffer from mental illness and or drug addiction. 

There is also a significant unmet need for mental health and addiction treatment services. 

Proactively providing these services, rather than waiting for people to be arrested, and then seeking to have them kept in jail before their trial, would reduce both crime and confrontations with the police.  

Putting someone who is mentally ill into jail for a few months will not cure their underlying mental illness or make the community safer in the long run. They will simply be released, without having received treatment, and the cycle will repeat. 

Also on the show, a BC Court of Appeal decision involving the Snaw-Naw-As First Nation and the Vancouver Island rail line that runs from Nanaimo to Port Alberni is discussed.

In 1907 10.78 acres of the Snaw-Naw-As reserve was taken as a right of way for the rail line and $650 was paid as compensation.

The rail line has fallen into disrepair and has not been operational for 10 years.

The Court of Appeal has given the federal government 18 months to pay for the repair of the rail line and, failing that, the Snaw-Naw-As First Nation will be able to apply for the land to be returned to them because it is no longer being used for the purpose that the right of way permits. 

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

Legally Speaking Sep 16, 2021


Adam Stirling [00:00:00] Michael Mulligan joining us, Barrister and Solicitor for Mulligan Defence Lawyers Michael, good morning, how are you? 


Michael T. Mulligan [00:00:05] I'm doing great. Always good to be here. 


Adam Stirling [00:00:06] Michael. We've been reflecting on the state of public safety here in the city of Victoria, as well as indications with respect to risk and public spaces, issues said to be caused ostensibly by repeat offenders and other matters. And you want to touch on this issue as well today? 


Michael T. Mulligan [00:00:23] Yes, I think it is a worthwhile issue talking about to discuss both the suggestions by the mayors and to explain how the bail or judicial interim release system actually works. 


Adam Stirling [00:00:37] mm hmm. 


Michael T. Mulligan [00:00:37] We're aware of that. 


Adam Stirling [00:00:37] Yeah, because I don't have a fully developed understanding of it. You, of course, serve as defence counsel at Mulligan Defence Lawyers, so you know all about it. How does it work? 


Michael T. Mulligan [00:00:45] So here's how it works. The concept with the judicial interim release is that when somebody has been arrested and alleged to have committed an offence, our starting point, of course, is that a person is presumed to be innocent. We don't presume the person to be guilty and immediately begin sentencing them or punishing them. And as a corollary of the fact that we presume people to be innocent, there's actually a constitutional protection that provides that a person is not to be denied reasonable bail without just cause. And you can easily imagine how if you didn't have that sort of protection, the idea of the presumption of innocence would be awfully hollow. If you get arrested for some relatively minor offence. And I tell you, while, you've been arrested for shoplifting, however, well, you're presumed to be innocent; you will need to remain in jail for six months waiting for your trial. 


Adam Stirling [00:01:45] hmm. 


Michael T. Mulligan [00:01:46] That's not going to seem like much of a presumption of innocence for you as you sit languishing at Wilkinson Road Prison. 


Adam Stirling [00:01:55] hmm. 


Michael T. Mulligan [00:01:55] And so that's the starting point. And that's been the starting point for a very long time. And there has not been some recent change that's altered that. And so, it's been a little bit of a head scratcher as somebody who actually does this work when there's been suggestions by the mayors that somehow some legislative amendments that they were referencing Bill C-75. 


Adam Stirling [00:02:20] Yes, yes. 


Michael T. Mulligan [00:02:22] Somehow that has had an impact on those principles. It has not that. That Bill, they've referenced it in their press release, obviously, somebody has given them that information. But what I've just told you about. 


Adam Stirling [00:02:36] mm hmm. 


Michael T. Mulligan [00:02:36] Is nothing new. And so, the way it works is when the police arrest somebody except for some very serious offences like murder, for example. Right. Where a person would actually have the burden of establishing that they should be released. There's an exception for very serious things like that. The presumption is that a person would be released, unless the crown could establish that their detention was necessary for one of a variety of reasons. And the principal consideration on bail, whether you should release the person to await their trial or whether you should hold them in jail waiting for their trial. The first consideration would be, is the person going to show up, right? 


Adam Stirling [00:03:21] Yes. 


Michael T. Mulligan [00:03:22] And so the first objective of bail is make sure the person is going to show up in court to deal with their matter. And so, in that regard, you would look at things like, has a person ever failed to show up before? Do they have, do they have any connection to the community? Right. Do they have an address? Do they have, you know, or some reason to think the person's going to take off if you let them go? The next consideration would be, is it necessary to detain the person in order to ensure the safety of the public, victim, witness or prevent them from committing some other criminal offence? 


Adam Stirling [00:03:57] Yes. 


Michael T. Mulligan [00:03:57] So it's necessary to detain somebody for that purpose. 


Adam Stirling [00:04:00] Mm hmm. 


Michael T. Mulligan [00:04:02] And there you would have to look at, for example, what is the nature of what the person is alleged to have done. Right. 


Adam Stirling [00:04:09] mm hmm. 


Michael T. Mulligan [00:04:09] And so if a person is alleged to have, let's say, a person who had a history of violent offending and they're arrested, there's a concern. Look, if you let this person go, they're going to commit some other offence or harm somebody. We need to keep them in custody to protect the public. That's what that provision is intended for. 


Adam Stirling [00:04:26] Mm hmm. 


Michael T. Mulligan [00:04:27] But you would have a very different analysis if you said, look, I've got a person here with that I've arrested for shoplifting. 


Adam Stirling [00:04:34] Yes. 


Michael T. Mulligan [00:04:35] You would have to ask yourself, are they going to show up in court if they are released? If so, is it necessary to keep that person in jail for a number of months in order to protect the public? And so, you're going to need to look at what is the nature of the offence, what are the alleged to have done? What is their history? Is it necessary to do that? And then there's a final circumstance which you can detain somebody, even if you're satisfied that they are going to show up in court and that it's not necessary to detain the person in order to protect the public, prevent other offences. You can also detain somebody for serious cases where you've got to base on the need to maintain confidence in the administration of justice, where you're dealing with a serious offence and a strong one. So not to single out the mayors as an example, let's say you had a public official who is alleged to have committed a serious offence on video. Right. 


Adam Stirling [00:05:35] mm hmm, Alright. 


Michael T. Mulligan [00:05:35] They're not going anywhere. 


Adam Stirling [00:05:36] Very unlikely in my knowledge. But I can't get into why. But yes, 


Michael T. Mulligan [00:05:41] Right. They aren't fleeing. They're probably not doing it again. But you might say, look, this is a strong case. Very serious, right? You know, we got you on videotape, you know, stabbing your spouse or something. You always say, look, even though you're not going to fail to show up, it's an overwhelmingly strong case. It's a serious matter. It could be necessary to detain the person in that circumstance. Now, I should also say that the way these things are analyzed is that people are usually released on bail, on conditions. 


Adam Stirling [00:06:12] Yes. 


Michael T. Mulligan [00:06:13] They are not simply although there's a presumption that a person is going to be released if it is necessary to ensure that one of these things is accomplished, like making sure the person is going to show up in court or keeping the public safe or keeping a witness safe or any of these things. 


Adam Stirling [00:06:30] Yes. 


Michael T. Mulligan [00:06:31] A judge can impose conditions on the person's release, and that's common. 


Adam Stirling [00:06:36] mm hmm. 


Michael T. Mulligan [00:06:36] And so conditions would often include things like reporting to a bail supervisor, advising them of your address, not having any weapons, not possessing alcohol or drugs, not going to a particular area, not having contact with particular people. And so, the idea is that you can impose conditions on somebody and then you would need to look at whether it's necessary to detain somebody, bearing in mind that you're able to impose those kinds of conditions. Right. So, you might say, look, I have a concern that this person might not show up because they are homeless and they don't have, they previously missed a court date, and they don't have a calendar. Right. 


Adam Stirling [00:07:16] yes. 


Michael T. Mulligan [00:07:16] And they will to make sure they're going to show up you could impose a condition saying you're going to report to a bail supervisor on a regular basis and we're going to keep tabs on you. You have to advise where you are. Keep in touch with them to ensure that the risk of the person failing to show up would be dealt with. And if you judge concludes that it can be adequately managed by the imposition of conditions, then they could choose to release the person. Now, so that's how the bail or judicial system works, a number of years ago to add some efficiency to it, rather than having the police keep every person in that they arrest, bringing them to the courthouse for a judge to make these decisions. The law now permits the police to decide if they think the person should be released on bail conditions. And that allows the police to do that without necessarily bringing everyone down to the courthouse to have the judge decide whether that should be done. 


Adam Stirling [00:08:13] mm hmm. 


Michael T. Mulligan [00:08:13] And that makes good sense, because sometimes the police would say, look, this persons got no record, they've no history of failing to show up. You know, all we need to do is make sure that Bob stays away from Steve because they got into a fistfight. And so, the police officer could say, look, I'm going to release you, but you're not going to be allowed to have contact with Steve and you can't have any weapons and you can't have any alcohol, and you need to report to the bail supervisor. Here's your paperwork courts in two weeks. 


Adam Stirling [00:08:39] Right. 


Michael T. Mulligan [00:08:39] Away you go. And so, there is authority for that. But bail is not a system which is intended to punish people, nor is it a system intended to impose rehabilitative orders on people. The purpose of bail is to make sure the person is going to stay out of trouble and come to court, right? 


Adam Stirling [00:08:59] Mm hmm. 


Michael T. Mulligan [00:09:00] Bearing in mind that they are presumed to be innocent. We don't start punishing people or imposing conditions on people who we presume to be innocent. And so, we do have a legitimate and serious issue with people who are mentally ill, addicted to drugs, who are engaged in criminal activity, often because they find themselves drug addicted, mentally ill and on the street. 


Adam Stirling [00:09:24] Yes. 


Michael T. Mulligan [00:09:24] All of those are very serious issues and they have serious issues in terms of businesses operating, in terms of people feeling safe in their community. They are serious and significant issues. But the answer to those issues is not to try to use the bail system to detain people in prison who are charged with relatively minor offences. The law doesn't permit it. The Constitution doesn't permit it. And that's not how we operate. We operate on the basis that people are presumed to be innocent. That's not to say we shouldn't be doing things to intervene and assist so that people aren't engaged in some of this activity. That's going to mean things like, providing adequate services to deal with people who are mentally ill, providing adequate services to deal with people who are addicted to drugs, because what do you think is going to happen if you have a group of people, who are, many of the people who are homeless, of course, are both mentally ill and or addicted to drugs? 


Adam Stirling [00:10:21] Yes. 


Michael T. Mulligan [00:10:21] And so if you have a group of people who are mentally ill, addicted to drugs and have no home, you are going to produce a circumstance where there is going to be public disorder. 


Adam Stirling [00:10:31] Yes. 


Michael T. Mulligan [00:10:31] You're going to get cars broken into, you're going to have businesses disrupted, you're going to have windows broken. 


Adam Stirling [00:10:36] mm hmm. 


Michael T. Mulligan [00:10:36] You're going to have graffiti; you are going to have problems. 


Adam Stirling [00:10:38] Yep. 


Michael T. Mulligan [00:10:38] And the answer to that, problem, those problems, which are serious problems, is not to allow the homeless people with mental illness and drug addiction to hang around on the street with no support. Wait until somebody shoplifts some food or something and then try to hold them in prison for a number of months to then be released right back to where they were. That's not the solution to the problem. And what happens is that the police department and the criminal justice system are what winds up getting engaged when there's nothing else provided. 


Adam Stirling [00:11:16] Yes. 


Michael T. Mulligan [00:11:16] Right. It's the last bastion. Right. And so, if you have no mental health supports, no proper treatment and you have a bunch of people who are homeless, the police are sort of the last gasp. They're the ones who are getting called when the mentally ill person, right. Is engaged in some disruptive behaviour,. 


Adam Stirling [00:11:36] Yes. 


Michael T. Mulligan [00:11:36] There's no one else left to call. And that's really not fair to the police. It's really not fair to all the people who are impacted by that behaviour, nor is it fair to the person who's mentally ill and having some kind of a crisis or breakdown. And that's where the intervention is required, and the intervention is required to address those problems. Not to say, well, look, we're not going to address the problems, we're not going to find any of those things. And instead, we're going to try to solve that problem by having the police go and intervene when the person's putting graffiti on the wall or stealing a muffler or stealing some food and then trying to have the person held in jail for a few months, that is not the solution to the problem. It would be unconstitutional, ineffective, and unfair to everyone involved. There is work that needs to be done here. There are things which need to be done to improve the circumstance. Both of the people who are dealing with the disruption caused by people who are in crisis and are dealing with mental illness and all of those things. And those people need help. The police need proper support, and we need to address them. But the problem is not the bail system. The problem is not whether we are keeping enough mentally ill people in prison once we catch them committing some offence on the street, that is not the solution to our problems. I appreciate that it is going to be frustrating, right? If you're a police officer and you're left with, oh my God, I've got this mentally ill person. They keep arresting them for, you know, stealing food or something. Right. Obviously, that feels, I'm sure, like a frustrating state of affairs. But we are not going to solve that problem by keeping a mentally ill person in prison for a short period of time and then releasing them. That's not a recipe for treatment, help or any kind of a long-term solution. And so, work is required here. There are legitimate gaps and problems, but the gaps and problems are not problems with respect to how we are dealing with judicial interim release decisions for people charged with minor offences. 


Adam Stirling [00:13:54] Could I get you to help me understand some words that were spoken on my show on the 11th day of March or around the 11th day of March this year by Attorney General David Eby, because he talked about how there had been a change in judicial interim release, whether it arose through the interactions within the courts and not legislatively. Here's what it sounded like:. 


Recorded Clip [00:14:10] "And a little bit more reluctant to send people into jail because of the risk of covid transmission and the becoming far more consequential for someone than was intended. And so, I think the courts have been alive to that. And they think considering submissions from defence counsel about that. So, people may be seeing some of that as a shift that's coming from the court that we don't have control over how the court's sentence."


Adam Stirling [00:14:35] The attorney general talked about a shift saying that there may have been a shift, and this is why. But it wasn't from them your thoughts? 


Michael T. Mulligan [00:14:42] Well, I think they're particularly in the early days of the pandemic. I think there was some consideration given, not simply by the courts and by the crown, but also by the police. Right. In terms of how people were being dealt with. There was, I think, particularly in the early days, some consideration given to whether it's appropriate to hold somebody in prison for a relatively minor offence, where the consequence of putting the person in in prison, particularly before we had vaccines, was putting their life in jeopardy. And so, there were decisions made, I think, in the early days when, you know, the police would arrest somebody for the kind of sort of public disorder offences that are going to be common for people who are homeless and mentally ill, things like shoplifting or minor assaults or mischief or those kinds of breaking into cars, the kind of things that are going to occur. And there would be some consideration given to, look, I've just arrested Bob here, the mentally ill, drug addicted person, for stealing the coins from a car. And there might be some consideration given to is it appropriate to ask that that person be held in jail for a number of months until the matter is dealt with, given the risk to their life of doing that and the desire to not have the prisons overloaded at the time when there was real risk of transmission and no vaccine or other things available. So those things were given consideration, I think, by everyone quite reasonably in the criminal justice system to make it function. 


Adam Stirling [00:16:17] Yes. 


Michael T. Mulligan [00:16:18] But there hasn't been some radical change in how the judicial interim relief system operates, that that piece of legislation that was referred to in the press release, there were some changes to the sort of language used to try to simplify the language used in the criminal code for bail. We used to have things like a recognizance or an undertaking. They tried to simplify that by using consistent language like now they're all now called release orders. So, they tried to sort of simplify the language and to streamline a little bit. 


Adam Stirling [00:16:51] mm hmm. 


Michael T. Mulligan [00:16:51] But the principles did not change. 


Adam Stirling [00:16:54] Interesting.


Michael T. Mulligan [00:16:54] And the Supreme Court of Canada for quite some time has been trying to give guidance about what it means to not deny people reasonable bail without just cause. And there have been many cases over the years trying to make clear that, you know, it's not appropriate to be detaining people for considerations that are apart from what legitimate bail considerations are like, keep the public safe, make sure the person is going to attend court. But bear in mind, of course, they're presumed to be innocent, right? We don't start from the proposition that everyone, the police arrest are inevitably going to be found guilty. And so, what, one of the implications of that is we don't start on day one punishing them. We presume them to be innocent. And we don't simply hold everyone in jail on the basis that we presume them to be guilty. And I should say, even if that weren't the case, we shouldn't be reserving assistance for people until they commit some minor criminal offence. We should be providing proper mental health and addiction services to people who need mental health and addiction services, not on the basis that somebody got arrested for stealing change or food or doing something of that sort. That's not an appropriate threshold for it. And so, work is required here. There is we have an absence of things that we legitimately need, and the frustration that that produces is completely understandable. But the solution to the problem is, in my respectful view, not the one that was identified by the mayors in Victoria and Esquimalt.


Adam Stirling [00:18:35] Indeed. And as I pointed out in a commentary yesterday, I'm not sure if you are aware of it or not. We have the same federal government that presides over the criminal justice system in Esquimalt, Saanich, and Oak Bay. And they haven't seen the same sorts of problems that we have seen within the municipality of Victoria, suggesting the federal legislation is not sufficient to cause these issues. Rather, they are far more complex, as you have articulated. 


Michael T. Mulligan [00:18:57] Yeah, and the legislative change that was referenced there didn't have a substantive change in terms of how judicial interim release was dealt with. It wasn't as if before the changes to that language, we were holding people in prison awaiting their trial on any time you arrested somebody for breaking into a car or stealing food or something, the prison would be full of people. That's just not how we operated before or after the piece of legislation that was referred to. And so that, in my view, is just a misunderstanding of how that system works. 


Adam Stirling [00:19:33] Interesting. Let's take our break. We're a little late for the break. I apologize but thank you so much for helping us understand these matters. Our guest, Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. He is a defence lawyer. He serves as criminal defence counsel. He knows how this system works and he's helping us better understand it because, of course, the system has become yet again a matter of debate as we examine the issues that we are facing in our community as well as beyond. Quick break. Back after this. 




Adam Stirling [00:20:00] Unfortunately, Michael, I've left far too much of the time go by. We've got two and a half minutes left. What else would you like to discuss during today's segment? 


Michael T. Mulligan [00:20:06] Sure. I think in two and a half minutes, I can alert everyone to what's going to happen to the rail line up to Nanaimo if the federal government doesn't do anything about it in the next 18 months. This comes out of a Court of Appeal decision from earlier this week. We, of course, have the rail line has not been functioning or used. And so, a court case was brought by First Nation through whose reserve the rail line runs. And their complaint is that when the rail line was constructed back in 1912, there was an order taking part of their reserve land to build the railway for which they were paid $650. And the money was, or the land was taken on the basis that it was necessary for the purpose of building the rail line. And because the railway has not been used, it's now basically sitting unused because of its condition. The First Nation has brought now a successful application in the Court of Appeal to get their land back on their reserve. And the Court of Appeal has concluded that they are quite right. And the thought of a two to one decision, the Court of Appeal, has concluded that the federal government has 18 months to either get the rail line working again, that is to say, pay for it. 


Adam Stirling [00:21:33] Mm hmm. 


Michael T. Mulligan [00:21:33] O the First Nation in Nanoose, is going to get their land back because the $650 they were given at the time was on the basis that the land was necessary for the railway. And given that we don't have a railway running there, otherwise they get their land back. And so perhaps that should be an issue in the federal election that's going on right now. It's essentially use it or lose it. And the clock is now ticking in terms of whether the whether the federal government is going to lose that or not. 


Adam Stirling [00:22:07] Interesting. So, there are implications with respect to traditional territories of the Esquimalt peoples, I believe. But I have to look that up because I was aware of this story a couple of years ago. I wasn't aware that that was the outcome, though. Wow. 


Michael T. Mulligan [00:22:19] Yeah. I mean, the history of it, of course, is that the building of that rail line was a term of union. 


Adam Stirling [00:22:24] yeah. 


Michael T. Mulligan [00:22:24] When you joined the Federation 1871, the agreement included Canada building the rail line. And there was, unfortunately for BC, a Supreme Court decision from 1994 that concluded that the federal government, where they were constitutionally obliged to build the rail line, didn't have a constitutional obligation to continue to run the rail line, which is in part why the rail line isn't running. But if they don't get it running 18 months from now, the portion of it that runs through the First Nation that brought this case gets it back. So, the federal government needs to make a decision pretty promptly about whether they're going to fix the rail line and get it working. And if not, that's going to be the end of the that's going to be the end of that part of it. 


Adam Stirling [00:23:09] Michael Mulligan for Mulligan Defence Lawyers. Always a pleasure, Michael. Thank you for your time. 


Michael T. Mulligan [00:23:14] Thank you so much. Have a great day. 


Automatically Transcribed on September 17, 2021 – MULLIGAN DEFENCE LAWYERS