This week on Legally Speaking with Michael Mulligan:
Recently, small groups of protesters have been intentionally blocking highways to get attention for their cause and to compel the government to meet various demands.
So far, police have exercised restraint and have attempted to persuade the protesters to move before arresting them. The police are not, however, required to wait any period of time before arresting people who are committing a criminal offence.
As discussed on the show, section 423 (1) (g) of the Criminal Code makes it an offence, punishable by up to five years in jail, to block or obstruct a highway for the purpose of compelling any other person to abstain from doing anything they that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing.
While there is a right to freedom of expression in Canada, that right does not permit expression in any way someone wishes. Assaulting someone might also be a form of expression, but it is also prohibited.
Section 423 (1) (g) is premised on the obstruction being intentional and for the prohibited purpose. It would not criminalize a very large group of people marching and protesting who incidentally caused traffic to slow down, for example.
Also discussed on the show are various sections of the Criminal Code that permit people to act on their own, to arrest or stop someone from committing a criminal offence.
Section 494 permits anyone to arrest someone they find committing a criminal offence. If you arrest someone pursuant to this section, you are then required to deliver the person to a peace officer. This section could have application if a highway was being blocked in a remote location where police were not readily available.
Section 27 of the Criminal Code also permits anyone to use as much force “as is reasonably necessary” to prevent the commission of an offence, such as obstructing a highway contract to section 423 (1) (g), but only is the offence is “likely to cause immediate and serious injury to the person or property of anyone”. This section could have application if a highway blockade was preventing someone from obtaining emergency medical assistance.
Section 30 of the Criminal Code also permits anyone who witnesses a “breach of the peace”, which is not defined, to detain someone who is causing the breach of the peace, or about to join or renew a breach of the peace for the purpose of “giving him into the custody of a peace officer”. This section would have clear application to, for example, stop someone who was participating in a riot.
Section 32 (3) of the Criminal Code also deals expressly with riots and provides that “every one is justified in obeying an order of a peace officer to use force to suppress a riot if (a) he acts in good faith; and (b) the order is not manifestly unlawful.”
Also, on the show, the case of a babysitter who plead guilty to criminal negligence causing the death of a 17-month-old she was caring for is discussed.
The babysitter was sentenced to 1-year in jail back in 2013 after the child drowned in a small amount of water in a bathtub.
Because the Crown failed to provide the babysitter, or her lawyer, with 140 pages of material including a medical report showing that the child had been hospitalized for a post-viral brain infection two months before her death, as well as material that cast doubt on the reliability of the Crown’s expert pathologist, the Court of Appeal has allowed an appeal to proceed many years after the jail sentence has already been served.
Follow this link for a transcript of the show and links to the cases discussed.
Legally Speaking Jan 13, 2022
Adam Stirling [00:00:00] Legally Speaking, on CFAX 1070, as always with Michael Mulligan for Mulligan Defence Lawyers. Morning, Michael, how are you doing?
Michael T. Mulligan [00:00:06] Good morning. Always great to be here.
Adam Stirling [00:00:08] It's a busy day. What's on the agenda?
Michael T. Mulligan [00:00:11] Well, I think the first thing on the agenda deals with the road blockages that we've been seeing.
Adam Stirling [00:00:17] Yes.
Michael T. Mulligan [00:00:18] We, of course, saw one in Victoria and apparently the group involved announced plans to block other highways through the province or across the country. And one of the things that came to mind for me were the first of all the sections that prohibit, the section that prohibits that, in the Criminal Code. People should, first of all, be aware of that. The section that prohibits that behaviour, that is to say, blocking a highway for the purpose of preventing somebody from doing something they have a lawful right to do or compelling somebody to do something. The section that prohibits that is Section 423.1 (g) of the Criminal Code, and it's important to know that, well, there is clearly in Canada a right to sort of express yourself right.
Adam Stirling [00:01:10] Yes.
Michael T. Mulligan [00:01:10] Or a protest that does not extend to blocking highways for that purpose, right?
Adam Stirling [00:01:17] Yes.
Michael T. Mulligan [00:01:17] The and there's no time period that's permitted to do that either. It's much like the fact that you have a right to express yourself doesn't mean you have the right to express yourself by, you know, physically attacking somebody.
Adam Stirling [00:01:31] Yes.
Michael T. Mulligan [00:01:31] That may be a form of expression. But it is prohibited.
Adam Stirling [00:01:35] Interesting. So, there's no and there's no time period because, I was, I was under the impression that officers their judgement could change depending on how long somebody's been in the road. So, I'm mistaken then.
Michael T. Mulligan [00:01:45] no, there is no time period for which that is permitted. It turns on why somebody is doing something right.
Adam Stirling [00:01:51] Okay.
Michael T. Mulligan [00:01:51] It's like if somebody is somebody, incidentally, you happen to slow traffic because there was a march of a thousand people down government street or something, right?
Adam Stirling [00:02:01] mm-hmm. Yeah.
Michael T. Mulligan [00:02:01] Where the purpose of the march wasn't to try to disrupt traffic or obstruct the highway; that wouldn't fall afoul of Section 423 (1) (g) of the Criminal Code. But where you've got a group of people who say, Look, I am setting out here to obstruct the highway in order to compel some action. My purpose is to be an obstruction of the highway. Not that that's the incidental effect of a large march of thousands of people to the Legislature, something. That is a criminal offence, and it is immediately so and there is no time limit permitted. And so, when the police are negotiating with somebody over that, it's sort of like negotiating with somebody who's an impaired driver to get them out of their car. There's no time period for which you're permitted to engage in that behaviour.
Adam Stirling [00:02:55] What could have as you try... Oh, I could do this for ten minutes if I could make it home in ten minutes. It's legal bill. There's no amount of time, OK?
Michael T. Mulligan [00:03:02] That's exactly right. And you know, there's lots of good discretion exercised by the police, and it's great that they have discretion, right? So, we would want it to be right.
Adam Stirling [00:03:10] All right.
Michael T. Mulligan [00:03:11] But there is no time period that you're permitted to do that.
Adam Stirling [00:03:15] Interesting.
Michael T. Mulligan [00:03:15] And so people shouldn't get the impression that the fact that the police are exercising restraint in arresting people that somehow they are obliged to do that, they are not.
Adam Stirling [00:03:26] hmm.
Michael T. Mulligan [00:03:26] There's no period of time for which you're permitted to commit that offence before the police arrest you. If your purpose is to block the highway to compel some activity, that's prohibited, and it is prohibited immediately.
Adam Stirling [00:03:39] Interesting.
Michael T. Mulligan [00:03:40] The other thing people should be aware of is that there are some sections of the Criminal Code which would permit individuals, not police, to personally address that kind of conduct in some circumstances. Now, I should begin by saying that in the ordinary course of affairs, it would be not wise to be physically intervening with somebody who's committing a criminal offence, be it blocking a highway or shoplifting, right? You probably don't want to get into a wrestling match in the middle of COVID with somebody, but you should, people should be aware that there are provisions of the Criminal Code, which in some circumstances would permit an individual citizen to respond to behaviour of the sort that we've seen and well in an urban environment where somebody is able to phone the police and they can promptly show up and respond, that is almost always going to be the preferable, safest course of conduct. And I wouldn't want to do anything to suggest otherwise. But people should be aware, that it's not the case that people are free to commit crimes with impunity if the police can't get there to do something about it. And so, people should be aware of those things. Section 494 of the Criminal Code provides lawful authority for anyone to arrest somebody they find committing an indictable offence. And interestingly, those provisions were extended slightly a few years ago as a result of an altercation between a store owner trying to arrest a shoplifter.
Adam Stirling [00:05:30] mm-hmm.
Michael T. Mulligan [00:05:30] But in any case, if anyone finds somebody who is committing an indictable offence, which would include Section 423 (1)(g), of the Criminal Code that is blocking a highway to or obstructing or blocking or obstructing a highway to compel somebody to abstain from doing something they have a lawful right to do. That is an indictable offence, and Section 494 would empower anyone to arrest somebody who is engaged in that behaviour. That could be in fact relevant, right, particularly if you had that kind of behaviour going on in more remote locations. The group involved with the blocking the highway in Victoria spoke about wanting to block the highway, the Trans-Canada Highway, and various places across the country.
Adam Stirling [00:06:21] Yes.
Michael T. Mulligan [00:06:22] Right. And so, somebody found in a more remote location some group of protesters deciding that they were going to obstruct the Trans-Canada Highway in some location. It is not people who are impeded by that activity would not be required to wait for the police to show up in some remote location to remove them.
Adam Stirling [00:06:47] hmm.
Michael T. Mulligan [00:06:48] Individuals would be lawfully entitled to arrest somebody who is engaged in that behaviour. If an individual arrested somebody in that fashion, they then have an obligation to forthwith deliver the person to a peace officer. And so if, for example, you had somebody obstructing the Trans-Canada Highway somewhere for that kind of a purpose, an individual, anyone would be permitted to arrest them, take custody of them and then either phone the police and say, Come and collect this person I've arrested for committing an indictable offence or in fact, you that it was not possible. If there are no cell service or, you know, particularly remote place, you could in fact physically deliver the person you've arrested to the police for them to deal with.
Adam Stirling [00:07:33] Fascinating.
Michael T. Mulligan [00:07:34] People should, people should also be wary that Section 27 of the Criminal Code permits anyone to use as much force as is reasonably necessary to prevent the commission of an offence for which somebody could be arrested without a warrant, which would include indictable offences like this one, but you should be aware that that can only be done where the activity is likely to cause immediate and serious injury to a person or person or property of anyone. And so, for example, we saw the intentional blockage of the highway Pat Bay Highway.
Adam Stirling [00:08:14] Yes.
Michael T. Mulligan [00:08:15] And I think one of the people who was interviewed there had some kind of a medical condition.
Adam Stirling [00:08:19] Yes.
Michael T. Mulligan [00:08:20] So for example, let's say you had protesters who were obstructing a highway in such a fashion that a person was unable to get to emergency medical care or let's say, somebody was having a baby, or they were having a heart attack and they were being driven to the hospital.
Adam Stirling [00:08:37] Yes.
Michael T. Mulligan [00:08:37] So that the blockage of the highway would cause immediate and serious injury, as a result of that. It's not necessary for somebody to say, well, I guess I'm just stranded here with a heart attack or while their spouse gives birth or something.
Adam Stirling [00:08:54] Yeah.
Michael T. Mulligan [00:08:55] Section 27 of the Criminal Code permits the use of reasonable force to stop that. And so, an individual would have if there was that kind of likely immediate serious risk of serious injury or damage to property, there would be authority there to use reasonable force to prevent the offence from continuing. And so, somebody would be able to lawfully, for example, physically remove the person obstructing the highway so they could carry on to get to the hospital, for example.
Adam Stirling [00:09:30] Hmm.
Michael T. Mulligan [00:09:32] There are other sections of the Criminal Code that provide for physical intervention in activities, including Section 30, which is an interesting one. Section 30 of the Criminal Code authorizes anyone who witnesses a "breach of the peace", which I should say is not a defined term,.
Adam Stirling [00:09:51] hmm.
Michael T. Mulligan [00:09:52] To detain somebody who is engaged in a breach of the peace or is about to join or renew a breach of the peace, and so a clear example of that might be, for example, a riot. Like, let's say the Stanley Cup riot going on and somebody is about to go out and try to, you know, light a police car on fire or something, right?
Adam Stirling [00:10:12] Yes.
Michael T. Mulligan [00:10:12] You would be permitted to use force to detain somebody to stop them from doing that. There's also an interesting provision that's perhaps not used too frequently, which expressly deals with riots. In that section 32(3) of the Criminal Code. And that section provides that everyone is justified in obeying the order of a) police officer to use force to suppress a riot if the person acts in good faith and b) the order is not manifestly unlawful. And so, the idea there would be let's say the Stanley Cup riot is going on and a police officer says to you, you know, stop that man he's about to throw, you know, lighter on the gasoline or something. A person would be lawfully justified obeying the police officer to use force to, you know, grab the man who's about to start a fire or do something else in the riot as long as the person's both acting in good faith and the order is not, "manifestly unlawful". And so that's another example of where there is lawful authority for somebody to physically intervene. And so, the point of all of this, right isn't to encourage vigilante action,.
Adam Stirling [00:11:26] uh-huh.
Michael T. Mulligan [00:11:26] But people should be aware that first of all, that kind of activity is criminal, and it is criminal from the get-go. You don't have some period of time you can commit a crime under Section 423(1)(g). And any discretion the police exercised in terms of talking to the people before they arrest them is entirely a function of exercising discretion.
Adam Stirling [00:11:51] okay.
Michael T. Mulligan [00:11:51] It's the entirely would be the equivalent of something like the impaired driver who's locked himself in the car. And it would be a matter of how long are the police going to talk to the person before they, you know, smashed the window, and pull the person out and take them to the police station?
Adam Stirling [00:12:05] Indeed.
Michael T. Mulligan [00:12:06] It is precisely that there is no time period that's permitted and before people think they can engage in that sort of behaviour simply because they feel strongly about an issue, they should be aware of that. And individuals that are impacted by it should also be aware that, while there are all kinds of obligations to act reasonably. They are not left powerless where you have somebody who is choosing to do something like block a highway to try to make some kind of a point. And there are clearly circumstances in which somebody who witnesses that or is impacted by that would be legally authorized to use reasonable force to arrest the person and deliver them to the police, or in cases where there is an imminent risk of serious injury or damage to property. There is authorization in the Criminal Code to use reasonable force to prevent that from happening. And so, people should not think that they are left powerless or that people engaged in that kind of conduct are permitted to act with impunity or indeed to do it at all.
Adam Stirling [00:13:21] Thank you for this, Michael. I was mistaken in my understanding of more than one element of this conversation, so it's very beneficial to all of us.
Michael T. Mulligan [00:13:29] There is a lot there, right?
Adam Stirling [00:13:30] Yeah.
Michael T. Mulligan [00:13:32] I think the first important point is the one that I mentioned, which is there is no right to obstruct a highway for the purpose of compelling somebody to do something or preventing them from doing something they're not permitted to do. That is not permitted. It is not permitted at all.
Adam Stirling [00:13:50] Yeah.
Michael T. Mulligan [00:13:50] And it turns on why somebody is doing something right. But clearly what's been going on, at least with the most recent activity, is that it's not a matter of there being some incidental dislocation because a bunch of people marching with placards or something, right? Indeed. Bunch of people marching down the street with placards, could have the incidental effect of slowing traffic?
Adam Stirling [00:14:15] Yes.
Michael T. Mulligan [00:14:16] And that's not going to rise to the criminal threshold under Section 423. But when you have a group setting out saying, we are here for the purpose of blocking or obstructing the highway, because we wish to compel people to do something or not, to do something, that is immediately a criminal offence. This section is actually entitled intimidation. And it lists other examples of where that kind of behaviour is, that is criminal. And so, I think the most recent occasion, the police were quoted as telling the people, Look, what you're engaged in here is a criminal behaviour. And given the explanation for what was going on and why this was happening. It seems quote clear that it is criminal behaviour. And again, there's no period of time that that's permitted
Adam Stirling [00:15:05] Michael Mulligan, Legally Speaking, on CFAX 1070. I learn new things every single week. My understanding of this now far better than it was before this conversation. I hope many of you out there can say the same. We're going to take a quick break more after this.
[00:15:25] COMMERCIAL. It's Adam Sterling on CFAX 1070.
Adam Stirling [00:15:28] All right. 250-386-1161 *1070. We'll do more open lines coming up later on in the program. For the moment, though, we're going to continue benefiting from the knowledge and experience of Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers very useful information in the prior segment. Michael and again, thank you for that. What else is on the agenda today?
Michael T. Mulligan [00:15:49] The next matter on the docket is a troubling case of a babysitter who had was sentenced to a year in prison after she pled guilty to criminal negligence causing death back in 2013. And the background of it is that the babysitter was looking after a 17-month-old who tragically drowned in a small amount of water in a bathtub when the babysitter apparently wasn't watching carefully the child. The reason the case is now back and quite troubling in terms of what has been revealed, has to do with the doctor who offered an opinion that was the basis of the Crown originally trying to prosecute this woman for murder. And the failure of the Crown to tell the woman, or her lawyer, about problems with that witness and indeed a failure of the Crown to provide disclosure of a large amount of material relating to both the doctor and the fact that this young child had been recently hospitalized for a brain infection two months before her tragic death. And the reason that's real worry is that in a criminal case, one of the basic principles is that the Crown has an obligation to provide what's called, disclosure, to the accused person or their lawyer, and the idea there would be to turn over to the accused person or the person's lawyer, evidence that might be helpful in one direction or the other in terms of whether the person's guilty of the offence. And it's that that obligation is right at the core of our criminal justice system functions. And what apparently occurred here, and it was agreed by a special prosecutor who was appointed to review this case now, is that the Crown had in its possession 140 pages of material, including material that called into question the opinion of the doctor that the Crown was going to rely upon at trial. And all this medical information, which showed that there may have been a pre-existing medical reason that contributed to what happened tragically to this young child. And the Crown at the time simply didn't tell the accused person or her lawyer about that. They held on to this 140 pages of material, and as a result of that, despite the fact that this woman pled guilty based on the information she had and served her sentence already. And despite the fact that a number of years have now passed, the Court of Appeal has just given the woman a very long extension of time to file an appeal to her conviction, and that was with the consent of the special prosecutor that was appointed to review the case now. And so ultimately it, this woman will be able to have an appeal heard now about whether her conviction, which was based on her pleading guilty, way back then, should be overturned because the Crown didn't provide to her that very important information about the reliability of the doctor's opinion that led to the charge. And as well the very important medical information about the young child who died. And so, it will be very interesting to watch how this case now unfolds. But it is a really important reminder, I think, to all of us in the justice system about how important some of those principles are. That is to say, the principle of providing disclosure so that somebody has all of the information necessary to make a proper decision about what they should do in their case, and where the Crown fails to tell somebody about that kind of critically important information; it has the possibility of leading to very serious miscarriages of justice. And this case may be yet another example of one of those. Even though in this case, it ultimately was a case where the woman pled guilty to this case, the charge of criminal negligence. The reason that occurred is that she was charged with murder, which would have led if she was convicted to life imprisonment. And that charge was premised on the opinion of this doctor, who whose view had been discredited by peers that had reviewed the opinion and the Crown simply failed to tell her or her lawyer about that when extracting this plea of guilty to criminal negligence causing death. So, it's an example of how a failure to provide disclosure of very important information can impact on those kinds of decisions. And it's also, I suppose, an example of how the coercive effect of, you know, telling somebody you may go to prison for life could lead to them pleading guilty to something that they may not have been properly guilty of. And so, we're a number of years after the fact the woman has already served her prison sentence, but hopefully now in the Court of Appeal will be able to get to the bottom of what happened and whether that conviction was proper.
Adam Stirling [00:21:43] Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. We appreciate the benefit of your knowledge and experience. Always, Michael. Thank you so much. And until next week.
Michael T. Mulligan [00:21:51] Thank you. Stay safe.
Automatically Transcribed on January 19, 2022 – MULLIGAN DEFENCE LAWYERS