Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Amicus, a sunken sailboat, and an administrator tries to buy a home
The Supreme Court of Canada has upheld the double murder conviction for a man who insisted on representing himself at trial. He was so disruptive that the trial judge removed him from the courtroom multiple times and then shut off his microphone on the closed video connection he had to the courtroom.
The accused in the case would not ask questions of witnesses or make submissions and would, instead, express various conspiracy theories about the FBU, the U.S. Army, and mind control.
The trial judge eventually appointed an amicus to ensure a fair trial for the man. An amicus is a lawyer a judge appoints to assist with a trial. Importantly, they are not a lawyer for the accused person.
The Supreme Court of Canada confirmed that trial judges have broad discretion to appoint an amicus, and the judge can determine their role.
In this case, the amicus was appointed to ask questions of the Crown witnesses so that the jury could hear an alternative to the prosecution's version of the case.
The Supreme Court of Canada concluded that there wasn't a miscarriage of justice when the judge didn't ask the amicus to make a closing submission to the jury after the accused would only talk to the jury about various conspiracy theories, telling the jury that "the FBI understands and believes [his] testimony, understands the situation at hand, the breached of national security."
Also, on the show, a case involving a sailboat that broke away from its morning, sunk, and was subsequently recovered and disposed of by the Bowen Island Municipality is discussed.
The man who owned the boat successfully sued the municipality for disposing of the wrecked boat because the municipality didn't get permission from the Receiver of Wreck.
Pursuant to the Canada Shipping Act, someone who takes possession of wreck must report it to the Reciever of Wreck and then do what the Receiver of Wreck directs.
In this case, the sailboat wreck was disposed of without permission.
The boat owner had claimed $95,000 but only received $5,000. There were two reasons for this. First, the owner's only evidence about the value was based on his estimate, which included the value of his labour working on the boat. Second, many of the lost things, such as upholstery, clothing and bedding, were lost because the boat sank and not because the municipality disposed of the wreck pulled up from the seafloor.
The trial judge also took some issue with the boat owner's credibility because, in a previous case involving the same boat, he claimed that he did not own the boat and that it belonged to his sister.
Finally, a case involving the administration of an estate is discussed on the show.
Someone administering an estate has a fiduciary obligation to the estate's beneficiaries: this means that decisions need to be made in their best interests.
In this case, the administrator was denied permission to purchase a property owned by the estate for less than its appraised value. This kind of self-dealing is prohibited, except in rare circumstances, unless all of the beneficiaries provide fully informed consent.
Follow this link for a transcript of the case and links to the cases discussed.
this time for legally speaking, joined as always by michael maligan, barrister and solicitor, with maligan defense lawyers. Morning, michael, how we do it. They're going to be great. Always good to be here, always interesting topics on the agenda. I'm looking at the first story here and I know just enough latin to know what the word for friend is. But the question is, what is an amicus and what do they do?
Michael Mulligan:yes, indeed, we got some clarity on this point from the supreme court of canada, uh in in including the fact that the plural of amicus are amicine, uh and uh and amicus would be certainly did to somebody who's a friend of the court, somebody who's a lawyer appointed to assist uh the court in some way. Uh, and the background of this case involved uh man who is charged with uh a double murder to counts of first-degree murder. Uh, and the man was obviously troubled uh and there was some concern about whether he was fit to stand trial, but ultimately, after uh uh assessments of that, he was determined to be fit. However, uh he refused to have a lawyer represented. He insisted upon representing himself, which, I should say uh is a protected right in canada, right, you don't force lawyers uh on uh to act for somebody uh if a person doesn't want that uh, that I should say, along with a few other surf. Key decisions in a criminal case are always decisions for the accused person uh to make, and it that sort of you to the part of our tradition of individual autonomy in the adversarial system. Right, and a person can decide do they want to have a lawyer and what lawyer do they want to have right uh, and the person is also free to make themselves key decisions in a criminal case, like do they want to be guilty or not guilty? Uh, what kind of trial do they want to have? Uh, do they wish to testify? Things like that are all decisions for uh accused person to make.
Michael Mulligan:And this man refused to have counsel uh, and so that led to uh the trial judge uh appointing, in this case, amicai. He started by appointing uh one lawyer to help the man in the jury selection process. Uh and the lawyer did that uh, but then the trial started and things started to go off the rails. And they were going off the rails because of uh how this man was conducting his own defense. Uh, he would uh refused to ask questions of witnesses, uh, but instead uh would uh do things. I get up and start expressing theories about kicks, conspiracy theories involving the fb. I, the u s army in mind, control uh interrupting the judge, yelling and screaming uh and on uh. Eventually, he wanted getting removed repeatedly from the courtroom and put in another room with a video link where the judge, on apparently sixty occasions at the mutus microphone, when you just wouldn't stop yelling or being disruptive of the trial process 60, you said 6-0? 60 times. The judge directed that the microphone be turned off because he was yelling, I guess, into the through the video system, wow, and that wasn't allowing the case to proceed.
Michael Mulligan:And the judge was concerned that the man get a fair trial despite all of this, and so the judge appointed another amicus, and the amicus was directed that he was not the man's lawyer, but he was there to like, do things like ask questions of the witness or witnesses, and that was, I think, significant is that the lawyer wasn't acting for the man. In fact, the man didn't want to even meet with the lawyer, right? I think on a one occasion he might have, but the lawyer wasn't there to be the lawyer for this man who didn't want a lawyer, right? Nonetheless, the judge had appointed this amicus to try to present an alternative to the crown theory of the case, so that the jury could come to a fair outcome, right To ask questions of the witnesses and present, perhaps, a different version of what might have happened for the jury to consider. And then, at the closing, what happened is this man started to make a closing submission, but it had absolutely nothing to do with the case. He just got up and started ranting about the FBI, the US Army and Mind Control, and the judge eventually said look, that's it, you can't do that. And the judge didn't ask the amicus to make some alternative closing submission and so on that fact pattern, the man was convicted of both counts.
Michael Mulligan:The case wound up in the Supreme Court of Canada.
Michael Mulligan:And so the Supreme Court of Canada was asked well, what is the role of an amicus? What should they be doing? Was this fair or are there a miscarriage of justice here? And should the amicus have been doing more Like, should they have been taking the role of being the man's lawyer? And the Supreme Court of Canada concluded first of all well, there were certainly all kinds of very challenging circumstances and irregularities caused by the man's behavior.
Michael Mulligan:Nothing that went on here amounted to a miscarriage of justice, pointing out that there's broad discretion for a trial judge to try to make things right and try to have a fair proceeding, as this judge was clearly trying to do in a challenging circumstance. And further, they pointed out that an amicus is not the person's lawyer Right. You can't force a lawyer on somebody who doesn't want one. If somebody insists on representing themselves, that's their right. And the judge, the Supreme Court of Canada concluded that there is broad discretion to give amicus different roles, like, initially, the trial judge appointed somebody to help with the jury selection Right, because the person just didn't know what was going on or how to do that.
Michael Mulligan:And then the Supreme Court of Canada also found it was appropriate to do what the judge did here, which was to have somebody who was asking at least some relevant questions of the witnesses, but that it wasn't necessary that that person then take on the role of pretending to be the person's lawyer, who didn't want a lawyer. That didn't not. Doing that didn't result in a miscarriage of justice or an unfair trial for this man who was screaming and yelling and talking about mind control. And so the result of it is the two convictions for first degree murder stand. There's no need for a new trial.
Michael Mulligan:And we've got now some further light shed on what is the role of an amicus, what can they be required to do, what are they not required to do. And, broadly speaking, the Supreme Court of Canada concluded that there is really broad discretion right. This is, of course, a human process and there isn't a single role for what that person is required to do and that judges can appropriately like this judge did tailor what that sort of friend of the court is there to do in terms of trying to ensure that the trial is fair. But whatever they're doing, it doesn't turn them into the lawyer for the accused person, who doesn't want one right. They're there to try to make sure the process is fair and, like in this case, maybe ask some questions or point out things that might be relevant, but they're not there to take over for a person who doesn't want them taking over. So that's what an amicus or, in this case, amicai are all about.
Adam Stirling:All right, let's take our first break. Legally speaking on CFAX 1070 with Michael Mulligan from Mulligan Defense Lawyers will continue right after this. Back on the air here at CFAX 1070s. Legally Speaking continues with Michael Mulligan from Mulligan Defense Lawyers. Up next, michael, the BC Court of Appeal upholding a $5,000 award regarding a municipality and the disposal of a sailboat. What happened here?
Michael Mulligan:Yes, indeed, I must say this has some resonance, because we do have these issues or these boats from time to time that appear to be sort of abandoned or washed up or that kind of thing, and so it's worth knowing what the proper procedure is when there's a boat that is wrecked and maybe plucked out of the water or disposed of, and when you can and cannot do that. In this case, it arose from Bowen Island and it was a man who owned two sailboats One was more to Bowen Island and the other one he was out sailing on. There was a storm. One of the vessels that was moored there broke away from its mooring and people were concerned. It was looking like it was going to run up on maybe another war for cause some damage, and so the municipality got contacted and the municipality did the correct thing in terms of contacting and this is under the Kennedy, the Canada Shipping Act the receiver of wreck.
Michael Mulligan:There is a person who is the designated receiver of wreck. It's a federal appointment and I must say it's one of those things where if you go into a grade two class and ask everyone who wants to be a what do you want to be when you grow up, you will have a number of firefighters and police officers, you will have no one who sticks up their hand and says I want to be the receiver of wreck, but there may be an opportunity there. And so the receiver of wreck is contacted and say, hey, we've got this. Boat is broken free, it looks like it might be causing some damage and in fact things are worse. The boat sank. So now what? Well, the receiver of wreck, who you're required to report these things to, told the municipality yes, you may go and recover the wreck. So the municipality hired a barge and, I guess, a crane or something to pull it up, and they pulled this sailing or this sailboat up off the floor of the ocean, uh, and they then chopped it up and disposed of it, uh, in bins.
Michael Mulligan:Now that's where things went a little haywire, because when you recover a wreck, you can't just throw it away. There's an obligation to tell the receiver of wreck hey, I got the wreck. And then it's up to the receiver of wreck to decide what should become of it, right, uh, how much money should you get for your recovery efforts and how should that be disposed of, or what ought to happen? And the municipal government, in the form of the Bowen Island municipality, didn't do that, and so they got sued. And the man sued the uh, the municipal government, the Bowen Island municipality saying hey, you destroyed my sailboat, um, and you didn't have permission from the receiver of wreck. And he succeeded because indeed they didn't have that permission.
Michael Mulligan:But the issue then became how much money is he entitled to for the sailboat that got thrown in the garbage? Uh, and the man didn't come with what you would often have, which would be like a survey or some professional estimate of what the boat was worth. He had sort of his own personal estimates of things that included things like how many hours of work he put into the boat and how much sentimental value it had, uh, and furthermore, he calculated the value he did the man of $95,000, including his labor and efforts, and then a bunch of other things, which is significant, including things like the upholstery and the clothing and the bedding and presumably food and electronics and other things that were on the boat. And what the judge the judge and now the court of appeal concluded first of all is that the loss of some of those things wasn't caused by the municipality throwing the hulk away in the garbage, because the things like the upholstery, clothing, bedding, food, electronics, whatever else was on there, would have been destroyed when the boat sunk. And the municipality didn't sink the boat, they just got rid of the carcass. They pulled it up off the floor of the ocean, and so the value shouldn't include things like the stuff that was already destroyed through no fault of the municipality. But there would have been other things on the boat, like tools or you know some portion of the boat which would have been maybe the sales rate, which wouldn't have been destroyed by getting immersed in water for a period of time.
Michael Mulligan:And furthermore, the court and the court of appeal pointed out a couple of things that were problematic with the man's self-valuation of all these things, including there was no evidence that the time he spent lovingly working on the boat increased his value. Moreover, there was a more fundamental problem, which was that in an earlier case, where it was in his interest to do so, he claimed that he didn't own the sailboat. He claimed that his sister owned the sailboat, but now he should have said no, no, no, that was mine. And so the trial judge and the court of appeal pointed out well, you can't have it both ways. And so that cast some doubt on, I suppose, the man's claims about value. And so the result of all of that is that the trial judge awarded him not $95,000, but $5,000 for the things that he found were thrown away without the receiver of rec giving permission. And the man appealed that to the court of appeal unsuccessfully, and the court of appeal said no, the trial judge made appropriate decisions in the case and findings a fact and there was nothing improper in any of that, and so the trial judge's decision has been upheld.
Michael Mulligan:So the takeaways there the important takeaways include that if you're a municipality or indeed a person who winds up in some circumstance with a wrecked boat, you can't just do with it as you please.
Michael Mulligan:You are required to report that to the receiver of wreck and then take directions.
Michael Mulligan:Now I should also say that once you do that, once you start recovering the boat and report it to the receiver of wreck, it also compels you to take any measures with respect to the wreck that the receiver of wreck directs. So you've taken on a bit of a burden there. When you decide you're going to get yourself a barge and a crane and haul up the sailboat that's on the bottom of the ocean you may wind up with some direction from the receiver of wreck. That might be expensive or inconvenient and, depending on what that thing is worth, that may be a challenging undertaking. So when you're looking out there and wondering why doesn't somebody just come and deal with this boat that's come up on shore, or that boat down the gorge or whatever it might be, bear in mind there is a whole legal structure around it and if you don't do as the receiver of wreck directs, you may find yourself on the hook for at least the value of the boat. So that's the case of the sunken boat and the Bowen Island misspality.
Adam Stirling:You know, I can see why people just sort of leave these wrecks where they are and not want to get involved after all that.
Michael Mulligan:I think that's the. The must be the legal equivalent of the advice in criminal cases. Don't talk to the police and you're the suspect in a criminal case. I suspect you're probably getting some similar advice if you speak to an expert in marine law Don't touch the wreck. You may find yourself in court.
Adam Stirling:Up next, the administrator, it says here, of an estate applies to court to permit her to purchase the property owned by the estate. Hmm, I have some concerns about that. What happened?
Michael Mulligan:Indeed, and you should have concerns. You got a good legal antennae. So the issue here was there was a fellow who passed away who had three kids, and the person who passed away did not have a will. The fellow who passed away owned, didn't have a lot of assets, but did have a modest property which might be worth. The most recent estimate was $284,000. So did a older manufactured home on it and two acres in Port McNeill. That was the description of it.
Michael Mulligan:And because the man didn't have a will, one of the daughters applied to for a grant of administration to be able to manage the, the estate right to distribute it and the. As is required when somebody dies in test state like this, the requirement would be to equally divide the assets amongst the, in this case the three children of the man. So that's what was being done. He didn't have a spouse. Now the problem arose because the property was in not great repair and so the daughter who was appointed as the administrator, uh, first of all tried to sell it and they she listed it for sale for $185,000, but the best offer they got was 155, which they didn't accept. The problems were with sewage system, water and this, and that that daughter then moved into the property Things. Now you just got to start asking yourself what are you doing? The daughter moves into the property and then spend several years working on it, fixing it up and doing things to it, and then the daughter decided that she wished to purchase it, but she wanted to purchase it for less than the than assessed value. She'd made improvements to the property.
Michael Mulligan:This is where the trouble arises, and the trouble is that when you're an administrator like that just like somebody who's an executor, where a person had a will, that person has what's called a fiduciary duty to the beneficiaries you need to make decisions which are in the interests of the beneficiaries, not in your own interest their interest, right, um? And there is a well settled principle that a trustee like that um can't engage in what would be referred to as self dealing, like purchasing property from the estate that they're managing, because it's pretty obvious what kind of a conflict that amounts to. Right, if you were setting the value and purchasing it. That's kind of incompatible with being the person who's acting for others, right, uh? And so there is a process whereby there could be an application made to a judge for permission to engage in what amounts to self dealing, and that's what the daughter tried to do here. And so she made this application. And then she made the argument to the court was well, look, I've done all this work on the property. Yes, I lived there but didn't pay rent, uh, but on the other hand, I spent all this money fixing up the sewage system and fixing up the water and paying the mortgage. There's two more of those standing. She paid those for a period of time. And so her argument is well, look, you should give me permission to purchase the home, uh, for what amounted to something like $100,000 below the most recent assessed value of it because of the work that was done.
Michael Mulligan:And the judge concluded no, there's just no basis to to do that. Right, when you're an administrator or an executor, you are, uh, you have this fiduciary relationship to make decisions that are in the best interest of the beneficiaries. Now, she happens to be one of the three beneficiaries, but it's got to be in everyone's interest. Now, there's an exception to that. All of that, if everyone agrees, like if everyone's competent adult or a person who's adult's fully informed. If the other two sisters in this case said look, yes, we appreciate all the work that you've done there. We understand that we might be able to sell it for more, but the place would have degraded me worthless If you hadn't done all the work on it. We agree, right. If they agreed, that's okay, as long as it's their competent and fully informed. But here they weren't agreed, right? They're saying no, no, I don't want it sold for this lower amount.
Michael Mulligan:And so the judge refused the administrator's request to do so, but did point out that it's not as if there's a circumstance where there would be some serious unfairness to the person who was acting as the administrator, because what should happen is that the property should be sold for market value, right. Listed People can make offers and purchase it, and then at the end of the process, there can be for an administrator like that, a process of passing accounts where a judicial official could determine whether, the how much money the administrator should be given for their work administering the estate right. And so in that context, the administrator would be able to come with, for example look, here are my receipts for my payment of the mortgage For the past three years, right. And here's my bill for fixing the water system. And here's what I did for the sewage system, right. Here are all my accounts and it would be possible in that context for there to be an order that the administrator be paid for the expenditures and preserving and fixing up the property and indeed an administrator could get permission to be paid for all of their time and work engage in all of that.
Michael Mulligan:So it's not as if there isn't some process to avoid sort of the unfair or unjust enrichment of the other beneficiaries, right?
Michael Mulligan:But the court pointed out that they're just that fact that that may occur at some point in the future doesn't authorize the reduction in the value of the property and to allow compensation in that way. So the overall picture here for people that take away is that if you find yourself operating in one of those ways, as an administrator or as an executor, you need to remember that in all things that you're doing you need to make decisions which are in the best interests of the people you're doing that for, not for yourself, and in that regard it's sort of similar to what you know, for example, a lawyer would do when they're acting for a client, or a doctor is doing when they're treating somebody right. Those are also examples of where there's a fiduciary obligation and the decisions being made need to be decisions made in the best interests of the beneficiaries, or the client or the patient, or whatever it might be, and not decisions which are intended to somehow benefit the person who's acting in that fiduciary capacity.
Adam Stirling:Well, that's the case of the administrator trying to buy the house, michael Malgen, in the second half of our second hour every Thursday here at CFAQ 1070,. Legally speaking, pleasure is always Michael, until next week. So much, have a great day, all right, you too. Bye now.