This week on Legally Speaking with Michael Mulligan:
Who is in jail and why? In Canada, the responsibility for jailing adults is divided between the federal and provincial governments. The federal government is responsible for penitentiaries, where people serve sentences longer than two years. The provinces are responsible for jails for people serving shorter sentences and for people who are in jail waiting for their trial.
In British Columbia, 63% of people in provincial jails are waiting for their trial. 36% of people are serving sentences and 1% have been detained by the Canadian Border Services Agency. There has been a long-term trend increasing the percentage of people in jail waiting for trial.
69% of the people in provincial jails have either a mental health or substance use disorder. 42% have both a mental health and substance use disorder.
In British Columbia, 35% of people in provincial jails are indigenous. Indigenous people make up 5-6% of the population in British Columbia.
The cost of keeping someone in a provincial jail is $259 per day. This is less than the $318 per day cost to keep someone in a federal penitentiary where more rehabilitation programs are available.
The cost of detaining someone in a provincial jail to wait for their trial is $7,770 per month.
As discussed on the show, this $7,770 per month cost provides an important reference point when assessing the cost of mental health and addictions services that can reduce the number of people committing offences and ending up in jail.
Also on the show, a BC Supreme Court decision to recognize an order from a court in Pakistan and return a 12-year-old boy despite objections from the child’s mother who alleged the order was made in accordance with Sharia law rather than in accordance with the best interest of the child.
The governing provisions of the BC Family Law Act are found in Part 4, Division 7 of the Act: Extraprovincial Matters Respecting Parenting Arrangements. Judges are directed not to make findings of fact on disputed evidence or to decide the merits of the case beyond what is necessary to determine the issues of territorial jurisdiction.
The idea of these provisions is to avoid parents bringing children to BC from other jurisdictions to re-argue custody decisions.
The mother in the case alleged that the court in Pakistan was applying Sharia law which directs that fathers should be given custody of male children, aged seven or more.
In rejecting the mother’s claims that the order from the court in Pakistan shouldn’t be followed, the BC Supreme Court judge deciding the case considered the fact that the court in Pakistan had not given custody to the father when the child turned seven.
There was conflicting expert evidence concerning how courts in Pakistan integrate Sharia law with the best interests of the child.
Follow this link for a transcript of the show and links to the cases discussed.
Legally Speaking Nov 4 2021
Adam Stirling [00:00:00] It's time for, Legally Speaking, joined, as always, by Michael Mulligan with Mulligan Defence Lawyers Morning, Michael, how are you doing?
Michael T. Mulligan [00:00:06] Good morning. I'm doing great. Always good to be here.
Adam Stirling [00:00:08] Absolutely. As we look at the topics on the agenda, there's been a recent report for 2021 B.C. Corrections, who is provincially in jail and why?
Michael T. Mulligan [00:00:18] Yeah, I must say they are very good at keeping statistics as to who's in jail.
Adam Stirling [00:00:23] Well, if they didn’t know how many were there, I'd be worried.
Michael T. Mulligan [00:00:26] Yes. One would hope. That makes that morning count difficult if you don't know what you're beginning with.
Adam Stirling [00:00:32] Exactly.
Michael T. Mulligan [00:00:32] So the thing to start with in Canada, we've got divided responsibility for running jails, right? The we have federal penitentiaries, which are run by Canada, federally, that are responsible for people who are adults serving sentences of two years or more and then provincially is basically everything else, like youth, people on remand that have been detained waiting for their trial; or people who are serving or serving a sentence of less than two years. And so, one of the interesting stats there, I think in the context of whether people are being held in custody or released waiting for their trial, which has been a topical thing in Victoria lately. Is the interesting stat about what percentage of people who are in provincial jails are there waiting for their trial, like not convicted of anything, versus people who have been convicted and who are serving a sentence. And the breakdown of the report, I thought, was interesting. It is 63% of the people who are in provincial jails are there on remand. That is to say, people who have been denied bail and who are being held in custody waiting for their trial, not convicted of anything. Only 36% of the people who are there are serving a sentence, and there is 1% who are there on the Canada Border Services. Matters like immigration matters, people who get arrested at the airport.
Adam Stirling [00:02:01] yes.
Michael T. Mulligan [00:02:02] And so the other thing which is interesting, and Stats Canada keeps very good records on it, that trend towards more and more people who are in jail being there are remand has been a growing trend over the last decade.
Adam Stirling [00:02:17] hmm.
Michael T. Mulligan [00:02:17] If you go all the way back to 2005- 2006, it was about even, the number of people who were on remand as opposed to serving sentences provincially. And essentially, it's just gone up and up as we keep more people in custody and fewer people serving sentences.
Adam Stirling [00:02:35] hmm.
Michael T. Mulligan [00:02:35] The other very interesting stats that was able to locate was the statistic on what does that cost us and the average cost per day to keep somebody in a provincial jail is $259. It's a little less than what it costs to keep somebody in a federal penitentiary, which is $318. That because they would be higher security sometimes, or they might have bit more programming. So provincially. $259 a day. So, what does that translate to? That's about $94,000, but $94,000 and change per year per person that you keep in a provincial jail. And to provide some context for that in 2019, the average number of people in Canada who were on remand. That is to say, not convicted of anything just in jail waiting for their trial.
Adam Stirling [00:03:29] mm hmm.
Michael T. Mulligan [00:03:29] Was 14,778, meaning that we're spending about $3.8 million per day, keeping people on remand, and on a monthly basis would be another way to think about it. Keeping somebody in a provincial jail so you detain them waiting for their trial.
Adam Stirling [00:03:47] mm hmm.
Michael T. Mulligan [00:03:47] Will cost you, will cost the public $7,770 per month. Okay, so just think about that.
Adam Stirling [00:03:55] mm hmm.
Michael T. Mulligan [00:03:55] So when you and I think it's important to think about it in the context of what would it cost to provide services that might avoid the person being in prison? Right? Because when you're spending $7,770 per month keeping somebody in a provincial correctional center waiting for their trial, that provides some context for what it would cost to provide, for example, mental health or drug treatment services for the person so that they don't wind up in jail waiting for their trial. And when you see how much we spend jailing people, it makes some of those other expenses suddenly seem a whole lot more reasonable.
Adam Stirling [00:04:37] Hmm.
Michael T. Mulligan [00:04:38] And the other interesting stats in that provincial corrections report were the percentage of prisoners who have either a mental health or a substance abuse disorder, and that percentage is 69%. So, the overwhelming majority of people who are in provincial jails are there are they have mental health and substance abuse disorders. One of the two. 42% have both. And this is another interesting stat.
Adam Stirling [00:05:08] Mm hmm.
Michael T. Mulligan [00:05:09] 35% of the people who were in provincial jails are Indigenous.
Adam Stirling [00:05:11] Yes.
Michael T. Mulligan [00:05:11] In comparison to about 6% of the total population. They're also overwhelmingly male. Look at the percentage of people who are like, who's going to jail provincially, 85% of them are male and federally of 93% are male. So, we are putting overwhelmingly males who are completely disproportionately Indigenous in prison at a very significant cost. And so, you know, we've had this discussion about, you know, what do you do when you've got sort of this social disorder type of offences that we're seeing?
Adam Stirling [00:05:47] Yeah. What does...
Michael T. Mulligan [00:05:48] Increasing frequency in like downtown Victoria?
Adam Stirling [00:05:50] Yeah. So, what does compulsory mental health treatment cost? Is it more than $250 a day?
Michael T. Mulligan [00:05:56] I'd be hard pressed to imagine it would cost. If somebody said to you, I'll give you $7,770. Do you think you can come up with a residential treatment program? I rather suspect you wouldn't have much difficulty at all
Adam Stirling [00:06:09] Hiring a doctor for a month.
Michael T. Mulligan [00:06:10] Well, you I don't think you need a one on one doctor for a month, but if I told you you've got a budget of $7,770 and you've got an issue with a drug addiction, and I suggested you go and find yourself a residential treatment facility, I rather suspect you'd be able to do so for something in the order of $7,000 plus per month.
Adam Stirling [00:06:30] hmm
Michael T. Mulligan [00:06:30] Because that's what we're spending to put somebody in prison.
Adam Stirling [00:06:32] Hmm.
Michael T. Mulligan [00:06:33] And so when we're dealing with the sort of social disorder type offences that we're seeing, people who are, you know, mentally ill and on drugs, smashing windows.
Adam Stirling [00:06:42] yeah.
Michael T. Mulligan [00:06:42] Or people who are breaking into cars and stealing tools from construction sites to feed their drug addiction. Right.
Adam Stirling [00:06:49] hmm.
Michael T. Mulligan [00:06:49] Those are completely irritating and unacceptable behaviours which impact the business community, everyone at large. They have a real impact. But if the approach is put somebody in jail for a few months at a cost of, you know, $7700 per month and then have them pop out with the same sort of difficulties, I'm not sure we've got great value for money there.
Adam Stirling [00:07:13] Hmm.
Michael T. Mulligan [00:07:14] And so those are the figures that people need to keep in mind when we're having discussions about things like should we provide residential drug treatment for people, should we provide beds for people who want treatment? You know, we can move on to should we force people into treatment.
Adam Stirling [00:07:29] Yeah, Because that's the other thing.
Michael T. Mulligan [00:07:31] Yeah.
Adam Stirling [00:07:32] And I think, and I think my question about the $259 a day, the compulsory element was assumed that I should have specified that, but I did not, unfortunately.
Michael T. Mulligan [00:07:41] Sure. But I guess I'm saying, you mean you could put somebody up, but probably The Empress for a $259 a day, right? It's not a small amount of money.
Adam Stirling [00:07:51] hmm.
Michael T. Mulligan [00:07:51] And so when we are considering, what do we do with people who are on the street with mental illness and drug addiction, who are repeatedly committing property crimes, for example? Right?
Adam Stirling [00:08:01] Yeah.
Michael T. Mulligan [00:08:02] The cost of providing intensive intervention, like in Victoria, we've had that with some success, but it's expensive. If we've had these programs that are like these assertive community treatment programs where you have a police officer and a mental health worker and so on, do things like show up and knock on a person's door each day? Hello.
Adam Stirling [00:08:21] Yeah. Each one has eighty clients.
Michael T. Mulligan [00:08:23] that's not cheap. But remember that figure when you're thinking about the alternatives, you know? And so if you're able to engage with people in a way that prevents them from engaging in that sort of criminal conduct that eventually winds them up in jail, you're going to, in addition to saving a lot of social disorder and a lot of unhappy people with their tools and coins stolen and windows broken, you may also produce a financial savings because that is a lot of money.
Adam Stirling [00:08:54] Yeah.
Michael T. Mulligan [00:08:54] And you can do a whole lot of intervention for $7,000 or $8,000 a month. Right? And so, I just think it's important that people know we have a lot of people who are being held in jail who are on remand. It makes up about two thirds of the total people in jail. We're spending a tremendous amount of money doing that and the people who are in jail, it's important to know what the profile is, which is overwhelmingly 69% mental health or substance abuse disorder, right? That's the population. And so, it's in that context, I think we need to consider other interventions like drug treatment or mental health treatment, and perhaps we do need to look at it once we have those facilities because there's no point talking about.
Adam Stirling [00:09:47] yeah.
Michael T. Mulligan [00:09:47] Being able to order somebody to go to a nonexistent place.
Adam Stirling [00:09:50] Yeah.
Michael T. Mulligan [00:09:50] But if we could have the facilities, we may wind up saving ourselves a lot of money as a community because the alternative is not only unacceptable from a, you know, public disorder crime perspective, but it is incredibly expensive.
Adam Stirling [00:10:06] yeah.
Michael T. Mulligan [00:10:07] So I think it's really important people know who's there, who's in prison and what is that all costing us.
Adam Stirling [00:10:12] Yeah, I guess I'm just thinking out loud here in terms of the costs, because if it was cheaper, you think government would take that cost cutting measure, but I guess its initial construction costs, capital costs, as well as setting up a system that would over time, yes, we'd save money, would probably take quite some time for that or those savings to be realized. The other issue is the compulsory element. You know, we could have a beautiful Villa style rehab facility up on the Saanich peninsula with a view of the Gulf Islands. Everything's great, but if a person doesn't want to be there and they're still downtown smashing windows, even though we've paid for their nice rehab, that sort of defeats the point.
Michael T. Mulligan [00:10:47] Yeah, I mean, I do think there is reasonable, reasonable scope for a debate in terms of requiring people to attend treatment.
Adam Stirling [00:10:56] Yes.
Michael T. Mulligan [00:10:56] And if we were if we were doing it in a way that wasn't designed to be punitive, it was designed to be, look, you've got a mental disorder, you've got a drug addiction, you're living on the street. We're going to intervene to try to help you with those things and in the process to assist others. I think they would be pretty broad support for that. But at the moment, the issue is not should we be forcing people into the treatment facility, we need the treatment facility.
Adam Stirling [00:11:22] Yeah, we don’t have that yet, it's jail or nothing. Yeah, okay.
Michael T. Mulligan [00:11:25] And I guess the other part of it is the explanation or discussion we've just had requires some statistics 5 or 10 minutes of looking at the math.
Adam Stirling [00:11:32] yeah.
Michael T. Mulligan [00:11:32] And looking at who's in prison. Where is from a political perspective, it's a lot easier to say lock them up, right?
Adam Stirling [00:11:39] Well, when they're locked up, they don't hurt anybody so.
Michael T. Mulligan [00:11:42] Well.
Adam Stirling [00:11:43] I don't have to worry about a person who's locked up, coming, and hurting me, Michael. I don't. It's a weight off my mind, regardless of any other factor.
Michael T. Mulligan [00:11:50] Well, not for long, though.
Adam Stirling [00:11:51] I know, I know, I know.
Michael T. Mulligan [00:11:54] How long do you plan to lock up the mentally ill drug addict?
Adam Stirling [00:11:56] I don't know. Hopefully, they'll be better when they get out, and if not, I don't really have a plan,
Michael T. Mulligan [00:12:01] But that's the thing they're going to pop back out. And here's the overall cost. Canada 2018- 2019 we spent $2.2 billion on correctional services, jails, keeping people in prison.
Adam Stirling [00:12:13] yeah.
Michael T. Mulligan [00:12:13] So just think about that, right? When you say, look, let's hold the shoplifter in jail for 3 or 4 months so they can have a trial. Well, you've just spent yourself there, you know, tens of thousands of dollars or what does that amount to 7700, let's multiply that by four. That's what you just spent holding. The person in jail might sound satisfying, but you just spent a heck of a lot of money and you probably at the other end, just have a person who still has a mental illness and a drug addiction. And, you know, our wallets are all collectively light to the tune of whatever that is, $30,000.
Adam Stirling [00:12:51] hmm.
Michael T. Mulligan [00:12:52] So we should I think about the math and the cost when we are considering the cost of other interventions, that might be an alternative to that.
Adam Stirling [00:13:00] Let's take a quick break. Legally Speaking, we'll continue in just a moment on CFAX 1070.
Adam Stirling [00:13:06] Returning to Legally Speaking on CFAX 1070, Michael Mulligan from Mulligan Defence Lawyers. Next on the agenda, 12-year-old, it says you're ordered returned from Pakistan to British Columbia. What's happening here?
Michael T. Mulligan [00:13:17] Well, or the reverse? This is a case that deals with a thorny topic, which is the issue of how we were to deal with the decisions made by courts in other countries with respect to parenting and custody. And the couple here is an accomplished couple. They were, they are dual citizens of Pakistan and Canada who have worked internationally and met in Toronto a number of years ago. They got married. They had a son, the sons, now 12. The wife and the relationship took off in 2013, left her husband, claiming that he was abusive, went to Pakistan and obtained a divorce. And so issued protracted litigation in Pakistan concerning the son and who the son was going to live with and who would get access to the child. And then, after many years of litigation there, as COVID began to take off, the mother got on a repatriation flight with her son, contrary to a court order from Pakistan and came back to Canada. The father was delayed somewhat as he got COVID and became extremely ill for a number of months. But then eventually what occurred is this case wound up in court in British Columbia, with the father saying, look, there was a court order consent order from the court in Pakistan, providing that the mother shouldn't have taken the child out of Pakistan and that he was to have access to the child there. The mother's retort to that in court amounted to effectively that the court process in Pakistan involved an application of Sharia law.
Adam Stirling [00:15:13] hmm.
Michael T. Mulligan [00:15:13] And she said she was, she felt, intimidated into entering into the consent order based on comments made by the judge. She alleged that the provisions of Sharia law would dictate that a male child over the age of seven would be given to the father and the father would have exclusive custody. And so, she argued that the law here shouldn't recognize this order from the court in Pakistan, and this is run up against a general provision that we have in our Family Law Act, which deals with the extra provincial matters respecting parenting arrangements. And the law is intended to prevent people from taking children and fleeing to other jurisdictions and sort of trying again, for example, right.
Adam Stirling [00:16:12] mm hmm.
Michael T. Mulligan [00:16:12] The general proposition would be you want to recognize court orders that are made and want to discourage people from fleeing across borders with children, which is a laudable objective and one of the principles in the Family Law Act, dealing with extra provincial parenting orders made by other courts is the idea that you shouldn't allow issues to be relitigated and a court here, like the Court of British Columbia that decided this case is not supposed to be making findings of fact or disputed matters other than what would be necessary to determine, you know, what was the proper jurisdiction to have made the order in the first place. Trying to prevent people from, for example, engaging in litigation. Let's say in Washington state losing, fleeing to British Columbia, and saying, well, let me just try again up here, right.
Adam Stirling [00:17:08] Yeah.
Michael T. Mulligan [00:17:08] We don't want that happening. But those principles become much trickier from a public policy perspective when we're trying to analyze what kind of a decision exactly is coming out of the Superior Court in Pakistan, where you have, for example, the mother here claiming that this was just some application of Sharia law and not taking into account what the best interests of the child would be. The mother here was unsuccessful. Ultimately, in her effort to resist the father's application to have the child sent back to Pakistan in accordance with the order from the court in Pakistan. And part of that was that the judge hearing the case in British Columbia found that the mother had failed to demonstrate some of the things that she was claiming. For example, the mother claimed that the presiding judge in Pakistan had said misogynistic things from the bench.
Adam Stirling [00:18:14] hmm.
Michael T. Mulligan [00:18:14] Made her feel demeaned and caused you to feel that if she didn't agree to the order, she would lose the child altogether.
Adam Stirling [00:18:21] hmm.
Michael T. Mulligan [00:18:21] But she failed to produce a transcript of the hearing and failed to produce any affidavit from her lawyer who was helping her at the time.
Adam Stirling [00:18:28] hmm.
Michael T. Mulligan [00:18:28] So the judge didn't accept that. And as well, she said, look, you know what was going on there was this application of Sharia law not looking at what the child's best interests would be. And her argument was, as a matter of public policy, the B.C. court should recognize this order from the court in Pakistan. The judge here did not accept that argument, either. And one of the things the judge here pointed to was the fact that despite this prolonged, protracted litigation, which went on in Pakistan from 2013 to 2018, the court did not simply award custody of the child to the father, which is what she suggested would happen on strict application of Sharia law in Pakistan. She was saying, look, the court would just do this. He's a male. He's over seven, to the farther you go. And the court here looked at the history of and said, well, that's not indeed what the court in Pakistan did. The court in Pakistan allowed her to maintain principal responsibility for the child with access to the father. And so, the court listened to expert evidence about the nature of the court process in Pakistan, but ultimately came to the conclusion that the order from the court in Pakistan ought to be recognized. And despite the mother's protestations that the process was unfair, or that she was pressured into agreeing to the court order from there and her protestations that this was not in the child's best interest, the court did what would be contemplated by the Family Law Act and made a determination that indeed Pakistan was the appropriate forum to have that litigation. Because that's where the child was living at the time. And so, the British Columbia Court recognized the order from the court in Pakistan, and the result of that is that the child will be returned to Pakistan despite the mother's claims that she was abused or that the court process was not a fair one there. So, a difficult case.
Adam Stirling [00:20:43] Yeah.
Michael T. Mulligan [00:20:43] And I think something people should be aware of because there really are some competing principles there.
Adam Stirling [00:20:49] mm hmm.
Michael T. Mulligan [00:20:49] Is in terms of recognizing orders made in other places, not wanting to encourage people to be fleeing with children.
Adam Stirling [00:20:56] no.
Michael T. Mulligan [00:20:56] Or trying again. But on the other hand, you know, we need to be, you know, what degree of certainty do you have that decisions from other jurisdictions are genuinely being made, for example, bearing in mind what the child's best interests are.
Adam Stirling [00:21:10] Fascinating topics, Michael. A pleasure, as always. Thank you.
Michael T. Mulligan [00:21:13] Thank you so much. Thank you for having me.
Automatically Transcribed on November 10, 2021 – MULLIGAN DEFENCE LAWYERS