Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Failing to Provide Necessities, Service of an Injunction and War Crimes Prosecutions
Most criminal offences in Canada involve prohibitions on doing things that would harm others. It is rare that the criminal law will require someone to do something.
An exception to this is the offence of failing to provide the necessities of life.
It is a criminal offence for a list of people, including parents, foster parents, and spouses to not provide the necessities of life.
It also requires anyone who is in charge of someone who cannot withdraw from that situation "by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge" to provide them with the necessities of life.
In the tragic case discussed the Court of Appeal allowed a sentence appeal by the Crown to increase a sentence imposed on a woman who worked as a caregiver for a 55-year-old woman who had Down Syndrome.
The woman with Down Syndrome stopped eating and slowly starved to death. The caregiver, relying on advice from the woman's mother, didn't arrange for medical assistance.
The case was unusual in that the caregiver had no animosity towards the woman she was caring for: they had a good relationship for more than 18 years and she mistakenly thought she was doing the right thing in not arranging for medical assistance.
While the Court of Appeal increased the sentence from a 12-month conditional sentence (house arrest) to a 15-month jail sentence, because the conditional sentence had already been served, the caregiver would not actually be required to go to jail.
Also on the show, a prosecution for criminal contempt for blocking a logging road by sitting on a tall tripod is discussed.
The issue in the case was whether the person sitting on the tripod had been properly served with a copy of the injunction not to block the road.
The police officer involved read a summary of the injunction to the person on the tripod and then left a copy of the injunction on the ground underneath the tripod, where it remained for an hour and a half until the police returned and arrested the man.
The court concluded that the man on the tripod had been properly notified of the injunction as it was drawn to his attention and he could have climbed down from his perch to read it but chose not to.
Finally, on the show, the war crimes prosecutions that took place in Nuremberg Germany following WWII are discussed.
The trial represented an alternative to summarily executing the prisoners as Stalin wanted to.
The trials involved four judges. One each from the USA, the UK, France and Russia.
The opening statement by the lead US Prosecution, Robert Jackson, began with this:
"The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason."
While most of the accused were convicted, and many of them were sentenced to death by hanging, three of the accused were found not guilty.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment Legally Speaking, joined by Michael Mulligan, Barrister and Solicitor, with Mulligan Defense Lawyers. Morning Michael, how we doing Good morning.
Michael Mulligan:I'm doing great. Always good to be here.
Adam Stirling:Interesting topics on the agenda. Today I'm reading a Crown Sentence Appeal for failing to provide. What does this mean? The necessities of life.
Michael Mulligan:That's an excellent question, and I should say it's a very interesting section of the criminal code, because the criminal code with very few exceptions, this being one of them doesn't impose positive obligations on people to do anything. So, for example, if you see a crime being committed, you're not generally under any obligation to do anything about it. You don't have to rush over and save the person. If you just stand passively and watch, you haven't committed any kind of a crime. Which is just an interesting intellectual thing to think about is that the criminal code is generally concerned with prohibiting somebody from doing something that's going to harm someone else. That would be the general theme of it, but this particular section of failing to provide the necessities of life is an exception to that, and this section imposes a positive duty and lists various people that it's imposed on. They include a parent, foster parent, guardian, head of a family that's an interesting term these days to provide care for, or other people, including a spouse or common law partner or this language, a person under his charge. That's gender specific, but it applies equally to men and women. And then it also lists who this obligation might apply to and tries to define it, and so, for example, with that broad term of a person under his charge. That would include someone who is unable by reason of age, mental disorder, detention or other causes, to withdraw himself or herself from that charge. And so, for example I'll give you an example that might apply to so one of the pieces, one of the items there would be by reason of detention. So, for example, if jail guards fail to feed an inmate and they starve to death, the jail guards can be prosecuted for failing to provide the necessities of life. But it's broader than that, of course, because this includes all these different categories children, spouse and so forth.
Michael Mulligan:And this particular case, where there was this appeal and a decision that was just released, involved a 55-year-old woman who had Down syndrome, who had been cared for for more than 18 years by the accused. And the other thing which was very unique about the case is that there was no indication that the accused had any animosity towards the deceased. In fact, they had a good caring relationship and extending over a very long period of time. But what transpired is that the 55-year-old woman who had Down syndrome, who was being cared for, stopped eating. She just wasn't eating as much as she previously did over a number of months, and the caregiver, for her part, listened to advice from the woman with Down syndrome's mother, who told her that this was just a common occurrence for people with Down syndrome of that age and that you can have, early on sent dementia and the lack of eating. And this is just what happens, don't worry about it. And the caregiver accepted that advice and accepted it to the point where this woman became thinner and thinner over time, and she said she was still making some efforts to feed her, but the woman was like spitting out boosts and this kind of thing, but she never got her medical care. That was really the crux of it. And the caregiver said well, if she doesn't want to eat, this is the decision she's made. I don't want to see her going into palliative care. That would be bad for her. I want to care for her at home.
Michael Mulligan:Right, she was lived in a live in caregiver and eventually, sadly, the woman just expired and the cause of death was slow starvation. And so the woman was prosecuted for both criminal negligence causing death. She was found not guilty of that, but she was also prosecuted with the offense that we just talked about sailing to provide the necessities of life, and in this case that would be, I suppose, medical care, right, obtaining that for something in the necessity of life, or getting somehow food in her. And so she was convicted and the sentencing judge, of course, and this is sort of that, one of those categories of cases which is the hard one, right. It's not difficult to come to fashion a punitive sentence if you're dealing with somebody who was malicious or acted out of hatred or greed or some other reason. But this woman, the caregiver, appeared to have just been completely misguided and didn't take reasonable steps when she saw the woman she was caring for slowly expiring over a long period of time. She accepted this bad advice from her mother that this was just a natural state of affairs, and so the trial judge sentenced the woman to what's referred to as a conditional jail sentence, and the conditional jail sentence sometimes people would refer to it as house arrest and the way that works is that if somebody is being sentenced to less than two years in prison and if there's no mandatory minimum sentence, one of the sentences available to a judge would be to put the person on a conditional sentence, usually house arrest, except for you know time, to go out and buy groceries, that kind of thing, rather than sending the person to prison. So that's what the sentencing judge did.
Michael Mulligan:The crown, for its part, thought that that sentence was inadequate and wanted an actual jail sentence for the woman, and so they appealed, and that's the decision that just came down from the BC court of appeal, and the court of appeal agreed with the crown, and the court of appeal said that an appropriate sentence here would have been a 15 month jail sentence, followed by a period of probation, which the judge had already imposed. So the first thought as you're reading that decision, they go like oh, this caregiver is going to prison now for 15 months, but the court of appeal didn't do that. What they said was the woman has already served the entire 12 month house arrest sentence, and so they gave her some additional credits. In fact, she should already served it, she said. Well, the crown court said the crown could have applied to stop the conditional sentence running, but they didn't. And so the court of appeal has said there should have been a jail sentence. Here we are imposing a 15 month jail sentence, but she need not serve it because she's already effectively served it by the house arrest.
Michael Mulligan:So I must say it's an interesting thing, of course.
Michael Mulligan:Right, because when you talk about some of these principles and often the court of appeal and certainly the Supreme Court of Canada are living in the land of principles right and broad principles in terms of range of sentences and so on, often run up to when that for a trial judge the reality of the individual person before them.
Michael Mulligan:Right, and this is an example of that right. You've got this caregiver with no record, who had a loving relationship, a caring relationship with this woman not loving, caring relationship with this woman for years, and wasn't intending to do harm, was doing what she thought was the right thing to do on the terrible advice of her mother. And so with that background, you have to be a you know it takes something to say well, now you're going off to prison to deter you or to deter others or to denounce this right. So what we have now is that court of appeal decision saying sentence should have been longer, but they didn't quite have the, whatever it might be, to actually send the caregiver off to prison. They found a legal way to avoid that, and so that's the outcome of a very unusual case and a very unusual fact pattern and one of the very few sections of the criminal code that actually compels you to go and do something, as opposed to just not do things that would harm other people.
Adam Stirling:All right, let's take our first break. Legally speaking, we'll continue right after this. If it's happening, it's here. This is Adam Sterling on CFAQs 1070. Alright, we're back on the air here at CFAQs 1070. Legally speaking continues with Michael Mulligan from Mulligan Defense Lawyers. Michael, the next story on the agenda is one that seems to occupy the better part of my program, one where the other, it seems. From time to time it says here notice of a junction by leaving it under a tripod of a rainforest flying squad member. What happened?
Michael Mulligan:So, as we talked about before and you've covered well, there were all sorts of people being prosecuted for criminal contempt for continuing to block the road following the injunction to stop doing that, and a good present of the cases wound up being stayed or discontinued after there was a decision that a sort of a summary of the injunction that the RCMP were reading to people blocking the road was not sufficient, right, not all the required information was in there, but this particular case I thought was a great fact pattern, and the fact pattern was a man sitting up above on a tripod, some 14 feet roughly off the ground blocking the road, and a staff surgeon showed up and was all on videotape and read to him the abbreviated version of the injunction, but then thought to take a copy of it and drop it under the tripod, pointing it out to the man, and then left and then came back an hour and a half later the man was still up at the tripod, the piece of paper is still sitting on the ground, and so the man was arrested and charged with criminal contempt.
Michael Mulligan:And so the issue in this case was whether this particular man had proper notice of the injunction, because of course there had been this decision, saying the brief summary of it wasn't sufficient. And here the judge found that indeed dropping the copy of the injunction at the bottom of the tripod was completely sufficient. The judge pointed out that the Supreme Court's civil rules provide that you can affect personal service on somebody. You don't need to physically hand an injunction or order to somebody. If you sort of put it there and draw the person's attention to it, you've succeeded right. You can't avoid being served by, you know, dropping the item or holding your hands behind your back and running away.
Adam Stirling:Putting your hands in your pockets?
Michael Mulligan:Yeah, yeah, that doesn't do it. And so the other interesting thing is the judge said look, the man had an hour and a half, and if you wanted to, he could have just climbed down from his tripod and read the injunction, but he didn't, perhaps out of concern he wouldn't be allowed to climb back up this tripod, but that was his problem. And so, on the facts of this case, the judge found that indeed the staff surgeon did effective service by leaving the order by underneath the tripod. The fact that the man didn't want to come down deep was his problem, and so the man was found guilty of criminal contempt. So there was just a really interesting fact pattern.
Michael Mulligan:The other interesting element the man also claimed that he should have had the order read to him in French After speaking English. He then said again in French, please, sir. The officer didn't speak any French, and so that didn't happen. But again, the judge concluded that made absolutely no differences.
Michael Mulligan:It was very clear the man could speak English, he was on video doing it, and so you can't avoid an obligation to comply with an injunction by demanding that it be read to you in another official language. That doesn't work either, and so this man has been convicted, and while a number of these prosecutions can't proceed because of that decision on the summary version of the order not being sufficient, this one did succeed because of the force state to leave the piece of paper below the tripod and I should say it looks like some of this may be commencing again. I have absolutely no doubt that the police will be bringing some lozenges with them and maybe a glass of water so they can read the entire injunction to whoever might be up on the tripod if that starts again this season. So service the tripod and by the, that's completely satisfactory.
Adam Stirling:This is a neat one I have next year. It's one of the most significant tributes that power has ever paid to reason, is it not?
Michael Mulligan:Yeah, that's the opening of what I think is probably one of the very best opening statements in a case that I've ever seen, and I was reminded of a recent recently had an opportunity to attend the Palace of Justice in Nuremberg, germany, where some of the war crimes prosecutions occurred following the end of World War II, and what you just read was a part of the opening statement from Robert Jackson, who was the lead US prosecutor for those war crimes trials, and the point that he was making there was that in many instances, and in fact in this instance, the Soviets wanted to simply line up all the Nazis that were captured and shoot them, and a remarkable process it was. The Soviets were persuaded to agree to hold a trial rather than simply shooting everyone, and so there was a trial. There were trials conducted in Nuremberg, at the courthouse there, and the trials operated by having four judges one appointed by the United States, one from the UK, one French and one Soviet judge and the accused were there and they were also afforded defense counsel if they wished it. And one of the other points made by Jackson the Bath of a Prosecution was that it was important that the trials had these full appearance of fairness, and he used the language of how ineffective it would be if they were seen to have been handed poison, chalices, basically and the idea was that he wanted the world to be able to see the evidence about what these men had done they're all men and to see a fair and open process with reasons, rather than simply assuming they were guilty and killing them. And so the trial was conducted. It went on for many months.
Michael Mulligan:Interestingly, there were various arguments made about the fairness of the process, appreciating that the process was yards better than what the Soviets would have done, and the complaints from defense counsel were wide range. They started with an argument that the things they were charged with were not crimes, and they said well, they weren't written down. Things like the indictment included, things like engaging in a war of aggression, right or genocide, things like that. That did not succeed. The various other arguments they made were also interesting ones in terms of fairness, because they are issues which remain as modern day criminal law issues. One of the issues that they raised which would have modern resonance is that they raised an argument that the prosecution was not required to show or provide the defense with evidence that would tend to show the accused person was not guilty. They were only required to show them evidence they were gonna rely upon to prove their guilt, which is very interesting. That's, of course, not the state of affairs any longer in Canada, but that state of affairs was found to be acceptable.
Michael Mulligan:In this context, other challenges arose, including by virtue of the fact that the defense council of the case, all of whom were German lawyers, which is interesting. None of them had any experience conducting a cross-examination, because that simply wasn't part of the German criminal justice system. They've never done it before Interesting. And so the trial proceeded on sort of a mixture of like affidavit evidence. Some of the evidence that judges were considering didn't involve live witnesses, but there was provision made so that defense council could ask permission to cross-examine witnesses, and so many witnesses were in fact cross-examined and they just had no experience doing it. The defense was also denied an adjournment to allow time for preparation or resources to gather evidence in the way that the prosecution had so clearly arguments to be made about all of those things, but the principal takeaway is just how impressive it is with that that a trial process was followed rather than something else.
Michael Mulligan:Ultimately, the not all of the men who were charged were convicted, most were twelve of them were sentenced to death by hanging. A number of them were sentenced to long prison terms, but three of them were found not guilty altogether, which is a very interesting outcome. All of those decisions out of interest were split decisions and the way the rules worked is that you needed to have at least three judges agreed to convict and the Soviet judge would have convicted on, I think, virtually everything and, on orders of Stalin, voted for the death penalty for everyone. I guess that being consistent with the Soviet position, that everyone should have been lined up against the wall and shot Indeed. But that isn't the outcome. And the other interesting thing is that there was well, generally speaking, the defense that was often raised was one of either Hitler's orders, sort of that we were ordered to do this, it's not my fault.
Michael Mulligan:That didn't get anywhere, nor did, generally speaking, an argument that was made that the allies had conducted some things which were the same. So, for example, the argument was made well, you've charged me with killing civilians. So they would say well, here's an example of where some allied bombing did the same thing, for example. That didn't succeed. But one of the areas where that did succeed was a charge brought based on Nazi U-boats sinking Allied civilian supply ships without warning and then doing nothing to save the crew. That wound up in the Atlantic. And the arguments made there included the fact that many of the ships had arms on them or were supplying arms, and further that the allies had conducted similar operations.
Michael Mulligan:And so that argument did succeed because not because of the hey, you're doing it too right, that didn't fly right, nor does that fly currently right. If you're charged with speeding, it's no defense to say, but look at all the other cars, right, that's not going to help you any. But it succeeded because many of these things, of course, were sort of amorphous principles. There wasn't a law you could point to right, and so you were looking at things like you know, some reference to sort of the common law concepts of what is criminal and wrong, and so they would look at things like you know treaties and agreements in terms of how wars are to be conducted.
Michael Mulligan:And on that particular example of the submarine sinking armed civilian ships, it just wasn't clear that that was contrary to the rules of war, and so the charges with respect to that resulted in acquittals, and so the entire process with all of its flaws of awards. I think is exactly what you referred to at the outset, which is one of the greatest, one of the greatest examples of a tribute that powers paid to reason the idea that we're going to have a reason to trial, provide reasons for judge, reasons for the decision, and rather than simply acting out of an ability to do so as the victor. So I think that was just a very interesting thing from the reminders of some of those principles that developed out of the war crimes prosecutions following the end of World War Two, some of the issues we're still dealing with today, Fascinating discussion.
Adam Stirling:Michael, thank you so much as always.
Michael Mulligan:Thank you so much. Have a great day.
Adam Stirling:Legally speaking, during the second half of our second hour every Thursday, you're on CFAQ's 1070.