BC Emergency Program Act, a damaged couch, and the SCC on sentencing ranges

This week on Legally Speaking with Michael Mulligan:

More than three days after flooding caused massive damage in BC, the provincial government declared an emergency pursuant to the Emergency Program Act.

The emergency declaration lasts for up to 14 days and can be renewed.

Pursuant to the authority this affords, the provincial government has restricted travel on damaged highways and has limited consumers to purchasing no more than 30 liters of fuel at a time.

The provincial government doesn’t directly employ people to repair roads and relies on contractors for the work that is required.

The provincial government does, however, have a direct role in providing information during an emergency. In this case, very little information was made available by the provincial government for several days. Timely information concerning damage and repair efforts was available on social and traditional media.

In addition to authorizing emergency orders, the Emergency Program Act prohibits civil claims against the government or people asked to conduct repair work relating to disasters for anything they do, or fail to do, absent gross negligence.

A small claims case over a couch damaged by a moving company is also discussed on the show.

The couch was damaged while attempting to move it through a door to an apartment.

The moving company relied on provisions of an email sent to the couch owner, after she booked the move, the purported to limit the liability of the moving company for items that were damaged in the move.

The legal principles discussed included the concept of a “bailee for reward”.

A bailee for reward is someone paid to keep or deal with property. It’s distinct from someone who agrees to do this for free, such a friend who helps you move.

A bailee for reward has the onus of proving that damage to property they were paid to deal with was not damaged by negligence.

A second legal principle that was relevant to the case was that limits of liability unilaterally added after a contract is entered into may not be effective. In this case, the email with the limitation on liability was sent after the contract to move the couch was entered into over the phone.

Finally, on the show, a Supreme Court of Canada case dealing with sentencing “ranges” or “starting points” is discussed. The case involved two men who were convicted of trafficking large amounts of fentanyl. They were sentenced to 7 and 11 years at trial. The Alberta Court of Appeal increased the sentences to 10 and 14 years saying that the starting point for this offence should be 10 years.

The concept of a Court of Appeal setting a starting point for sentences is controversial because parliament hasn’t seen fit to set a minimum sentence and because the Court of Appeal is only supposed to interfere was a sentence imposed by a trial judge if it’s demonstrably unfit.

The Supreme Court of Canada upheld the increased sentences, and the idea of a starting point or range of sentence being set out by a Court of Appeal. It did, however, conclude that a sentence imposed outside of the range or below the starting point should not be overturned on appeal only because it’s outside of the specified range.

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

Transcript

Legally Speaking Nov 18, 2021

Adam Stirling [00:00:00] It's time for Legally Speaking on CFAX 1070 with Michael Mulligan for Mulligan Defence Lawyers Morning, Michael, how are you doing? 

Michael T. Mulligan [00:00:06] I'm doing great. I'm not underwater, so I can't complain. 

Adam Stirling [00:00:09] You know, I was thinking about you the other day because I hear there were water problems in the courthouse. And I'm thinking perhaps at some point in future that that very helpful and reassuring whistle that is affixed underneath the council table in some of the courtrooms may be accompanied by a snorkel or something similarly helpful in the event of a flood. 

Michael T. Mulligan [00:00:27] That that's exactly the kind of thing that they could mandate under the Emergency Program Act, right circles under every table in the government. 

Adam Stirling [00:00:35] There's been a lot of talk about the period of time that transpired between the clear indications that there was an extreme weather event happening and the proper declaration of a state of emergency. As you've advised us in your materials here, three days after the storm occurs, take us through how all that works and what the benefit of declaring a state of emergency at all might be at this time. 

Michael T. Mulligan [00:00:58] Those are excellent questions. So, in B.C., we have the Emergency Program Act, which would permit the Premier to declare an emergency either a local one or province wide. I must say I read the act. I was having flashbacks to that episode of the office that Michael Scott walks into the room and yells out, I declare bankruptcy. And so, the there are certainly powers that are permitted here. The way it works is that if there's a declaration of an emergency by the premier or cabinet that would last for 14 days, it can be renewed by order in council for subsequent periods of 14 days. We just got out of one, of course, in summer that we had going on repeatedly due to COVID. And it's also interesting to look at what is the effect of that rate. What difference does that make? Because of course, the province of British Columbia doesn't have a bunch of employees on standby ready to go and start, you know, digging out mud, this kind of thing, right? The physical things that are being done or by individuals and volunteers and community associations at churches and so forth other than, for example, the military, which we saw called in to do things like the airlift. 

Adam Stirling [00:02:18] Yes. 

Michael T. Mulligan [00:02:19] The capacities that it's provided, or the province has, is limited to doing various things specified in this act. They can do things like ration food order that prices be fixed. They can hire people to do things. They can demolish property. One of the interesting powers is to cause the demolition or removal of any trees. I'm not quite sure what it means by causing them to be removed because of course, they don't have a team of tree removal people. He could hire people to go and remove trees, but there is no declaration that's going to cause these things to happen. And so, you should read with skepticism. For example, when you read the press release, it talks about how this declaration of an emergency will, for example, "ensure the transport of goods." Well, of course, it does no such thing. The things that transport goods are trucks, freight and what to remove the trees from the road, you better hire a contractor to get out there and start digging. Now, one of the effects that this does have, people should be aware about, aware of is Section 18 of the Emergency Program Act provides that once this is done, it exempts all the people involved from civil liability. 

Adam Stirling [00:03:34] hmm. 

Michael T. Mulligan [00:03:34] So it exempts the Premier, other members of the Executive Council, local authorities, people who are appointed to do things or authorized or required to do things. It means that they cannot be sued for doing things or failing to do things which are done in "good faith" unless you could show gross negligence. And so that's going to mean things like, you know, if somebody was saying, Hey, the province, you know, had some obligation to fulfil to do something or other going to clear the road or to provide supplies or whatever it might be, you're not going anywhere in terms of trying to sue over that unless you could demonstrate that there were grossly negligent in what they chose to do. So, there is that effect. One thing amusingly, the province does have, and I should say, one of the things you might expect from a province that seemed to be absent here for several days was effective communication and coordination. 

Adam Stirling [00:04:32] Yes. 

Michael T. Mulligan [00:04:32] Right. The sources of that were from radio stations and Twitter and Facebook. 

Adam Stirling [00:04:38] Yup. 

Michael T. Mulligan [00:04:39] And the government was largely absent there. If you were trying to figure out when was the highway going to be open? You weren't going to get much information from the official sources you'd get, you know, no date could be provided at this time. The only way you were figuring out when something might occur would be to look at what people are locally reporting or people are posting on Facebook and Twitter groups, which seems a little unsatisfactory. 

Adam Stirling [00:05:05] mm-hmm. 

Michael T. Mulligan [00:05:05] One of the things the province has done, interestingly, is they've pre-prepared and you could actually look it up on the Emergency Management web page. The pre-prepared a bunch of Facebook and Twitter posts for people to copy and paste it to Twitter or Facebook. 

Adam Stirling [00:05:21] Interesting.

Michael T. Mulligan [00:05:22] I think things like things you might post during a flood. And interestingly, some local governments are doing exactly that. 

Adam Stirling [00:05:30] Interesting.

Michael T. Mulligan [00:05:31] simply copy and paste things like the helpful tip that quote you can prevent or reduce flood damage to your home by building a sandbag dike. And so, you can, fed that into Twitter, along with a pre-prepared picture with the title Get flood ready. So, there are certainly people, while we don't employ people that could actually do things like go in and remove trees or fix the road. Those are going to be contractors.. You can phone the fire department or the police department, but you know, one of the things that can be done is communications, and people are virtually starving for, you know, leadership and information when there is that kind of a disaster going on and people are trapped all over the place. And so, I think there is a fair criticism here. Leaving aside the yelling out, I declare an emergency. 

Adam Stirling [00:06:23] yeah. 

Michael T. Mulligan [00:06:23] You know, many of the things that can be done there don't require a declaration of an emergency. It requires things like the effective, you know, collection of information and providing clear up to date details for people who are right are often in a pretty desperate circumstances. None of that really requires you to come in yellow to declare an emergency. And here, I think once this is all the physical things are under control and people are safe and so on. That's something we're going to reflect upon. Also, interestingly, the act makes provision for even without yelling order to clear an emergency, authorizes making surveys and studies to identify and record actual or potential hazards. I'm not sure you need the legislative authority to do that. So, what's required is, you know, somebody to collect the information that's available and put it in a place that people can access to figure out what's actually happening on the highway and when is that actually going to be open and where is the mudslide? And all of this, and it seemed like that information was available from people with Twitter and not the not the provincial government. So, I'm sure in the coming days, once we're through all of this, there'll be lots of opportunity to reflect upon what exactly is the provincial government's role, what should they be doing? And you know, what sort of information should be, should be provided. So, there we have it. The Emergency Programs Act. Don't think you're going to be suing anyone if you're unhappy with how the cleanup is going. 

Adam Stirling [00:07:54] And of course, it was almost like something out of Monty Python, unfortunately, is that we did not engage British Columbia's emergency notification system that would override your cell phone, my cell phone, anyone in a given geographical area with some sort of alert to give them important information. And there was actually supposed to be a test of this system yesterday. They actually cancelled the test yesterday because they didn't want a drill to happen in the middle of the crisis that would confuse people. So instead of having the test notification go out, we had no notifications whatsoever at any point during this crisis. 

Michael T. Mulligan [00:08:30] Right? Perhaps that's not the best time to tweet out the test or set up the first message telling you that sandbags might help protect your house from flooding. That is poor timing, 

Adam Stirling [00:08:41] Let's take a quick break here on CFAX 1070, Michael Mulligan for Mulligan Defence Lawyers with, Legally Speaking, will continue right after this. 

[00:08:49] COMMERCIAL. 

Adam Stirling [00:08:49] Continuing with, Legally Speaking here on CFAX 1070 an interesting civil case with respect to moving furniture, Michael, tell us about this one. 

Michael T. Mulligan [00:08:59] Yes, indeed. So, this actually came out on Tuesday from the Western Community's courthouse. They guess managed to keep going despite the flood conditions downtown, and case involved a woman who hired a local moving company to move her couch, love seat and a few other things from a storage locker into her apartment. And she made the booking on the telephone, and the company dutifully showed up, picked up, said furniture, then had some trouble getting the couch through the door. I think we've all been there, the staff trying to move the couch and tried various things, but ultimately slightly damaged the door and damaged the couch.

Adam Stirling [00:09:41] mmhmm. 

Michael T. Mulligan [00:09:41] Hence, how the thing wound up in court and the legal principles that are involved there, I think, are ones that it's worth people knowing about. One of the first principles is this concept of a person being a bailee for reward. There's some old English language. 

Adam Stirling [00:09:57] hm. 

Michael T. Mulligan [00:09:57] The basic concept of somebody who's a bailee reward would be a person who's like storing or dealing with property for you for payment, right? 

Adam Stirling [00:10:07] huh. 

Michael T. Mulligan [00:10:08] And that would be distinct from somebody who's a bailee, not for a reward, but which, for example, would be if I came up to you and say, can you hold this for me? And you say, sure. And I'm not paying you. There are some special obligations and rules that apply once I'm paying you to move my couch as opposed to just, you know, if you ask your buddy, hey you mind moving my couch. And he says, Sure, he, helping you out. And one of the differences is that when you're a bailee for reward, like the moving company is being paid, when there's damage to something like, in this case, the couch. The person who was being paid to move the thing or keep the thing would have the onus of showing that any damage that befell the object wasn't as a result of their negligence. It's kind of it's on you to prove you weren't careless in moving the couch through the door, in that case, whereas if it was just your buddy, you sort of agreed to help you move your couch. They wouldn't have a presumptive obligation that they wouldn't presumptively have been negligent if it turns out your couch got ripped trying to get it through the narrow doorway. 

Adam Stirling [00:11:18] Interesting, yeah. 

Michael T. Mulligan [00:11:19] And so that would be the starting point here with the moving company. And then the other interesting concept is that when the woman in this case arranged for the moving of the couch, she did that on the phone. Phone them up. Hi, can you move my couch. Sure. And then the company, after the fact, had their computer system set up. That would email out various legalese kind of like, you know, we've all seen the, you know, the iTunes agreement you scroll through have to click OK and before you can do anything right? 

Adam Stirling [00:11:49] Yes. 

Michael T. Mulligan [00:11:49] Wasn't it Seinfeld who said you could insert the entire text of Mein Kampf into the thing and people say Yes, yes, yes, I agree. I agree whatever is necessary to get and use the program. And so here, the text of the thing mailed out to the, emailed out, to the woman included various things that purported to limit the responsibility of the moving company, including things that were under kind of misleading headings that said, things like, you know, purchase protection plan. If you read the whole thing at the bottom of it, it would sort of say, oh, we're not responsible for anything, and that those kinds of provisions that would purport to limit the responsibility for somebody. 

Adam Stirling [00:12:32] Yes. 

Michael T. Mulligan [00:12:34] Are not going to be effective unless they're brought to the attention of the person at the time the contract was made. 

Adam Stirling [00:12:41] Okay. 

Michael T. Mulligan [00:12:41] That's the general principle there. And it comes from like ski, I think it's a ski lift case that stands for that proposition. 

Adam Stirling [00:12:48] mm-hmm. 

Michael T. Mulligan [00:12:48] Like if I sell you the ski pass, then after you've bought the thing, you walk around the corner and there's a bunch of, you know, text posted on the wall or on the back of the ticket after you've paid for it, saying we're not responsible for anything that may not be effective because it came after the contract, we already had the deal. Right? I agreed to the price for the moving I paid you. And then after the fact, just telling somebody in an email, by the way, you were not responsible if we wreck your couch may not be effective at causing there going to be a limitation of liability because it just came too late after the contract was already made. So, because of those two principles that idea of the bailee for reward and that idea that you can't just unilaterally after the contract was made, add some term to it, like we're not responsible if we wrecked your couch, hidden at the bottom of a bunch of other things, for those reasons, the woman's going to get her couch paid for. So, I think those are day to day things people should be aware of: bailee for a reward and the idea that you can't just limit liability afterwards by sending something out or putting a sign up. So don't assume that all of those things are going to be effective at removing liability. 

Adam Stirling [00:14:03] All right. So that's how that shakes out. The Supreme Court of Canada upholds I'm reading here the concept of starting points at ranges of sentence for various offences. How does this all work? 

Michael T. Mulligan [00:14:13] Yeah. So, these were two cases that got to the Supreme Court of Canada. The fact pattern were two different men, both happen to be from Alberta, who were convicted of like trafficking in large quantities of fentanyl, and both of these men eventually were convicted. One of them was given a seven-year prison sentence, the other was given an 11-year prison sentence. The Crown appealed those sentences to the Court of Appeal, asking for longer sentences. And the Alberta Court of Appeal agreed. And indeed, the British Court of Appeal increased the sentences from seven and 11 years to 10 and 14 years and used some language talking about what could be referred to as a starting point or in some cases, the courts of appeal will use the term range of appropriate sentences for various offences. And so, the issue that went to the Supreme Court of Canada was whether it was appropriate for courts of appeal to set out starting points, like to say, look, you know, for trafficking in fentanyl in large quantities. The starting point is going to be 10 years in prison and goes up from there. And the reason that can be controversial, controversial from a legal perspective, was that first of all, Parliament hasn't done that. Right, if you look at the criminal code, it doesn't see the starting point for fentanyl trafficking is 10 years. It would give us a maximum like life in prison. 

Adam Stirling [00:15:45] Mm-Hmm. 

Michael T. Mulligan [00:15:46] So one of the issues is should a Court of Appeal be doing that if Parliament hasn't seen fit to do that? And then the other issue is that Courts of Appeal are only supposed to interfere with sentences where they are demonstrably unfit. The appeals aren't opportunity. or aren't supposed to be an opportunity to sort of tinker around with what was done unless there was some error of principle or the sentence is, you know, demonstrably unfit. And so that's what went to the Supreme Court of Canada. And so, we got an answer to that, kind of. And the reason I say, kind of, is if you can believe this, the judges in the Supreme Court of Canada are all free to write their own reasons, right? And in this case, we had two judges wrote reasons. Two other judges concurred with them. One judge wrote concurring reasons. One judge concurred with those. Another judge wrote separate concurring reasons, and one judge wrote a dissent which one other judge concurred with. And so, you have to very carefully read all of that to try to piece together, what on earth did you find here? Because you all kind of went off, scattered like cats, and wrote various different things, agreeing with one another and some points, but not others. But the broad takeaway is that when you piece together the, the outcome and the majority from the Supreme Court of Canada, is that the first of all upheld those longer sentences that 10 and 14 years for these two men. And as well, they found that that concept of having a starting point, or a range of sentence set out by a court of appeal was not inappropriate. Speaking about the fact that it can be useful for there to be sort of guidelines provided to lower-level judges when they are trying to determine what would be the individualized, appropriate sentence for some individual, that concept that we should try to have similar people treated in a similar way. And so well, the majority from the Supreme Court of Canada emphasized that sentencing is a very individualized process, and you've got to look carefully at, you know, who is this person and what exactly did they do? And it's rare you're going to have two people who are identical in terms of their liability. Those kind of principles starting points or ranges are appropriate. However, the Supreme Court of Canada found that in future cases, if a judge, a trial judge was to depart from the range or starting point set out by a Court of Appeal, that departure alone would not be the basis to find that a sentence was inappropriate. You would have to nonetheless find, the Court of Appeal would have to find, that a sentence was actually demonstrably unfit for that individual. And the fact that a trial judge might be outside of the range or below a starting point would not, on its own, be the basis to interfere with a sentence. So, the Supreme Court has said it's fine for the Court of Appeal to do that, it can be useful. But judges have to pay attention to that. But because it's an individualized process and because of the limited authority on an appeal, the fact that a particular judge and a particular fact pattern found that a sentence outside of the range, that was indicated in that range, you could be outside of it in either direction, of course, right. Now would not in itself be the basis to interfere with it. So, we're still going to see that kind of language ranges and starting points from Courts of Appeal. But it's clear that there is a there is a discretion for judges to depart from inappropriate cases. 

Adam Stirling [00:19:32] All right. We've got a 1:20. 

Michael T. Mulligan [00:19:35] Well, I've got to say, if I had 1:20, to talk about something is probably back on the Emergency Program Act and how that's played out. And I should say that act, apparently there's consideration being given, I think at the moment to how that should be improved and reviewed. And I think that's good news because I think as we've seen for the past few days there's I think, lots of scope for the provincial government to improve what they're doing and how they're doing it, and perhaps we do need to give some consideration in times of increasing turmoil about whether there should be additional resourcing provided, so that there are people in place to be able to assist in emergencies like this. Currently, we've got communications people, but then perhaps the provincial capacity to respond to these things should be buttressed in some way, perhaps combined with the existing emergency first responders, firefighters, and military and so on, many of whom I'm sure would and currently are operating with a dual role. So, I think we are in the course of that review, likely to see some consideration given not only to the structure of that act, but whether we could do things to improve the ability to respond more quickly to these sort of emergencies. 

Adam Stirling [00:21:02] Michael Mulligan with Mulligan Defence Lawyers during the second half of our second hour every Thursday here on CFAX 1070. Michael, a pleasure as always until next week. 

Michael T. Mulligan [00:21:10] Thank you so much. Stay safe. 

Adam Stirling [00:21:12] All right. Bye now. 

Automatically Transcribed on November 22, 2021 – MULLIGAN DEFENCE LAWYERS