Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
The Presumption of Death Act and Common Law Voluntariness
What happens when a wealthy business owner disappears without a trace, leaving behind a tangled web of allegations, destroyed property, and unanswered questions? Join us as we explore this real-life mystery with expert insights from barrister and solicitor Michael Mulligan of Mulligan Defence Lawyers. We journey through the intricacies of the Presumption of Death Act, examining a case where millions in life insurance hinge on the final determination of a man's fate. From the eerie aftermath of a fire in his airplane hangar to the bizarre silence of his bank accounts, the case presents a fascinating puzzle full of legal and investigative challenges.
The episode takes an unexpected twist as we navigate the legal repercussions that arise if someone presumed dead were to reappear while also dissecting the nuances of Canadian law concerning police interrogations and the right to counsel. We also delve into a Court of Appeal case that revisits a first-degree murder trial due to the mishandling of a confession, emphasizing the critical importance of voluntariness in legal proceedings. Through these complex legal landscapes, listeners gain a deeper understanding of how justice is pursued and the vital role of law in unravelling mysteries. Tune in for a thought-provoking episode that promises to leave you with more questions than answers.
Follow this link for a transcript of the show and links to the cases discssed.
It's time for our regular segment, joined as always by barrister and solicitor with Mulligan Defence Lawyers. It's, legally speaking with Michael Mulligan Morning, Michael, how we doing?
Michael Mulligan:Hey, good morning. I'm doing great. Always good to be here.
Adam Stirling:Some very interesting things on the agenda today. I'm reading up first the presumption of death act.
Michael Mulligan:There's an act called that. Isn't that a great name for a provincial law? Indeed, we do have the Presumption of Death Act, and the most recent application of it is in a decision which was just released, and the purpose of that act is to deal with the issue of what happens when somebody just disappears, and that could matter In this particular case. The person who disappeared was apparently quite wealthy. He had 16 life insurance policies which would pay out millions of dollars if he passed away, and the fact pattern is just a really interesting one. So the fact pattern is this wealthy person, business owner, all these life insurance policies. He was confronted. There were some allegations made by family members about some historical sexual misconduct 20 years earlier. That's sort of what's starting this fact pattern. Sexual misconduct 20 years earlier that's sort of what's starting this fact pattern. And this man was confronted with those allegations on December 17th of 2009 at about 1 pm. The very next or two days later, the man was at his office, which was located in a large airplane hangar in Prince George, about 1,500 feet from the main airport terminal, if anyone's familiar with it, and a fire broke out in the hangar, and indeed there had been some cause for concern about the electrical system in that hangar. On the 16th of December, the day before this man was confronted with the allegations there had been electricians working in the hangar, bc Hydro had been there and there was concern with the electrical system and whether it could pose some danger of fire. So fire breaks out of the hangar. Fire department shows up. When the fire department shows up, initially some people that are there say oh, they don't believe anyone's in the building. But this man's truck is parked out front. Several of the firefighters go into this very large hangar and they look for people there and they see no one in the building. After they go into places, including this man's office, there is thick smoke and different firefighters have different evidence about how far they could see, but they'd see the man nowhere in the building. Having searched it, the fire spreads rapidly in the hangar and the fire department eventually has to evacuate the hangar after the fire spreads into the ceiling and the building is essentially destroyed. After that no one can find this man and there are very careful searches conducted.
Michael Mulligan:There's an initial search. The fire department takes two days going through the rubble from the building. They find no human remains and no personal artifacts, rings or other material like that. There's then a subsequent search of the building which goes on for some eight days. They're using dogs, they're going through things in just an absolutely painstaking fashion. Again, no sign of the person, no sign of human remains, no sign of things from him. Nothing's found. His truck remains outside. After a couple of days they release the truck to a family member. It's frozen, solid. This was in the winter, it's minus 30 outside. It gets towed to a garage so it can be unthawed, so it can be opened. In the truck they find the man's briefcase birth certificate, passport, day timer, computer, wedding ring wallet, credit cards and driver's license. There's also a suitcase in there, clothing, pair of shoes. No sign of the man.
Michael Mulligan:The eight-day search is conducted with the benefit and assistance of an expert, a doctor expert, a doctor, and that person's evidence is that there were no remains found there and that it would not be possible for somebody's remains to have been completely destroyed by this kind of a fire, given the temperature of it and how those things work, as an expert in that area. It causes the RCMP to conduct a financial investigation. They look into his credit cards. None of them have been used. They make inquiries of flight manifests. He doesn't appear to have got on any plane. They look to see whether there are any cars rented. There were none. They check with taxi companies. No one picked the man up. The man was also apparently not in good physical condition and it was minus 30 outside and he had light clothing on, and so the family's view is there's just no way this person could have walked away somewhere.
Michael Mulligan:Nonetheless, after hearing from the expert in the eight-day search who says it's impossible that the remains would have been destroyed completely in this kind of a fire, they conduct a search of all the surrounding areas in case he, like went off into the woods or passed away somewhere else Nothing. They then follow up with investigations to see whether this man had used any of his bank accounts in the years following. None of them were touched. They had a forensic accountant go through company records to see things like could this man have been saving money or had cash or something he didn't report? There was no sign of that. Have been saving money or had cash or something he didn't report? There was no sign of that.
Michael Mulligan:There was, very interestingly, a short time after this, a single report from a man in a town nearby who knew the man who disappeared, claiming that he saw him in a Home Depot parking lot, and he reported it. And when he reported it, he said that he looked the same as the man did before and he still had a distinctive limp and his hat in a usual way that he wore it. So it sounds like this detailed description of him saying that he got into this particular vehicle. The trouble was, the family member said he did not have a distinctive limp, nor did he wear his hat in a sideways fashion. So there was some doubt about whether that person's account was accurate. Nonetheless, for years there were efforts to follow up. There was no contact from this man in the future, no family member was ever contacted, no indication of any financial transactions of any kind, and we're now something in the order of 14 years plus almost 15 years after this man disappeared.
Michael Mulligan:And so this application is made under the Presumption of Death Act, and the Presumption of Death Act has some statutory provisions that allow an application to be made to a judge to declare the person dead, and where that kind of an application is made, the person making the application must provide evidence that they've not heard from the applicant, they have no knowledge of where they are no reason to believe the person is living, no grounds to exist to support the idea that the person is not dead. And I should say, interestingly, even without that act, there is a common law presumption that if somebody is just missing, with no contact for seven years, there can be a determination that a person has passed away. But this act allows for there to be a formal declaration and issuance of what would amount to the equivalent of a death certificate and that, of course, very much matters because the man is very wealthy and has all of these life insurance policies that were in place. Another interesting thing he hadn't taken out any large amount of life insurance prior to that the judge said two years earlier he took out a $370,000 life insurance policy, but that was a trifling amount compared to the other policies. So there is no indication of that.
Michael Mulligan:And where there's this kind of a circumstance and a judge is making a decision under this presumption of death act, there are a number of things which can be looked at, like the circumstances where the person disappeared. Does the person have any history of fraud? You know, because sometimes people will commit fraud, pretending to disappear to collect on life insurance. This person had no history of that. The other thing that can be looked at are things like was there valuable property abandoned, indeed there was. The other thing that can be looked at are things like was there valuable property abandoned, indeed, there was.
Michael Mulligan:The man was very wealthy, lots of money in his bank accounts, these life insurance policies, assets, businesses. All of this none of it touched, and so the judge looked at a variety of things. He looked at the fact that the wallet was left in the truck with all of his credit cards and so on. His birth certificate and passport were left behind. The truck was abandoned. The fact that the RCMP had searched the flight manifest, taxi passenger list, rental car companies. The fact that he was wearing light clothing and it was minus 30 out, so it's unlikely he could have just walked away.
Michael Mulligan:His medical, his physical condition family said he's not capable of walking long distances and the fact that he had no history of fraud. He was not involved with other criminalized organized crime. You know, there are things I guess might get you concrete boots dumped in the ocean or something. No indication of that. There was no evidence that he managed to squirrel away money that he could have lived on undetected and touching any of his known financial assets for 14 years. In fact, there's no indication that he planned to disappear. He had some plans to spend Christmas with his family, and the judge pointed out that the man had been confronted with these allegations of sexual impropriety for many years earlier. But that was only two years, two days before this fire and the disappearance occurred. And so the judge also reasoned this man wouldn't have had time to plan some sophisticated escape plan or have some other identity or something.
Michael Mulligan:And so, given all of that, despite the fact that the exhaustive searches didn't turn up anything, despite at least one expert saying it would just not be possible for somebody's body to be completely destroyed in this kind of a fire and there was no body discovered, despite the fact that the firefighters who were there indicated that they had gone into this man's office, they did not see him in the office, and despite all of those factors which would give you a cause. But what happened here? Right, you know, the man might have been despondent about the allegations. That's possible. One theory was maybe he lit the building on fire himself. But on the other hand, the day before he was confronted with these allegations, there were BC Hydro and electricians there concerned about possible fire hazards from the electrical system. So it could have just been a coincidence and an accident, and so it remains a mystery.
Michael Mulligan:The body was never found, despite all manner of inquiries and searches and forensics, examinations and looking at material with DNA and dogs and all the things. You've gone through days picking through material by the fire department, the RCMP, forensic experts and just nothing. And so to some extent it does remain a bit of a mystery what happened to the man? But after 14 years and no contact and no financial transactions, and only that one sighting, which had some questionable elements to it, because the description, although the man who said he saw him seemed certain and described some characteristics that would seem unusual, the judge said well, he wasn't prepared to that didn't cause a doubt because of the family's evidence that he didn't have a limp and didn't wear his hat in a distinctive fashion. So who knows who that man saw?
Michael Mulligan:And despite all of that, the eventual conclusion, and I think in large part because of all of that exhaustive work searching and the time that's gone by, you know this man. You know, at the time of his disappearance he was 55, and he would now be 69 years of age, and so, given all of that, the judge issued the decision under that Presumption of Death Act. And the consequence and this was eventually unopposed by the insurance companies, who also did investigations, because of course, they don't want to have to pay for life insurance if the man's not dead they had done their own investigation, searching for the man, and found nothing, and so eventually, even though they started by opposing it, they dropped their opposition to it, and so the result of this declaration under the Presumption of Death Act is that the 16 life insurance policies will pay out and there will be many millions of dollars for all of the family members left behind, and still questions remain about what happened. So that's the Presumption of Death Act and how we deal with it when somebody just disappears.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers, Legally speaking. We'll continue in just a moment on CFAX 1070. Back on the air here at CFAX 1070, legally speaking, with Michael Mulligan from Mulligan Defense Lawyers. Michael, I got a text during the commercial break and I wasn't sure if you knew the answer with the presumption of death act, this man now having been essentially declared dead under the law. What would happen if he just showed up someday?
Michael Mulligan:That would be a very complicated appeal. So, yeah, there could be all sorts of things that might have to be unwound if the man was turned up. Of course you'd have claims from the insurance companies wanting to get their money back. Ah, you'd have all kinds of other things that would happen. The man had a will and actually in his will he'd written a letter asking for forgiveness from his family about the things that he'd done, not specifying what they were. The implication was it might have had some reference to the allegations of sexual impropriety, and so other things would occur as well.
Michael Mulligan:By operation of the presumption of death act like his will would then take effect. All of his assets would then be dispersed to all of the beneficiaries and of course, you know, you might have a pretty hard time trying to put that back in the box after it's happened. And so the effect will be insurance will pay out, will come into effect, you have an executor, assets will be distributed, you know, and so if he was to turn up, I guess there would have to be some effort to try to put that all back where it was. But the family members will be moving in at this point following that declaration.
Adam Stirling:All right, very well. Up next it says Court of Appeal orders a new first-degree murder trial following acquittal based on the exclusion of an inculpatory statement. I don't even know what that word means.
Michael Mulligan:It's confessing, and so essentially the case involved this concept of the application of the principle of common law voluntariness. I'll explain the context in which this came up. So it was a murder case. It was a very tragic case where a couple of people were shot in their home and the Crown's theory of it is that it was an attempted hit on a couple of gang members involved in the drug trade who used to live there but moved out. So you want to find out who the prior tenants were before you rental place Maybe that's the takeaway and there were two rival gangs, both involved in drugs.
Michael Mulligan:The particular incident was in Cranbrook and originally the accused in the murder trial had been convicted several years after the fact with conspiracy to murder these people and he was sentenced to 13 years and he served a good part of that. But a number of years later he got charged with the actual murder. His theory was that the conspiracy had ended when the person who was supposed to carry out the murder didn't do it, and so this man wound up being arrested and charged with the actual murder of these two people in the residence, and people are probably familiar with the idea in Canada, sort of like in the US. When you're arrested, you need to be told about your right to counsel right.
Adam Stirling:Yeah.
Michael Mulligan:And in Canada that's an obligation to be told about that. And if a person says, yes, I want to do that, they should be given a reasonable opportunity to retain and instruct counsel. So it's not one phone call or one quarter or something. It's an opportunity to retain counsel, speak to them and get legal advice. Unlike in the US, in some cases in Canada there is no right to have your lawyer present. Sometimes people from the movies think, oh, yes, I don't want to talk to the police until my lawyer shows up. Yeah, it's never happening. In Canada you have a chance to get advice from the lawyer but not to have the person sitting there. And in fact, you would not have the person sitting there in Canada. In the Canadian context, you would just turn that lawyer into a witness about what happened and furthermore, there's just no right to that, at least in the current state of the law.
Michael Mulligan:And after somebody said it, when a person asks to speak to a lawyer, the police have to stop trying to ask them questions or gather evidence from them until they've had that chance to speak to a lawyer and get legal advice. Typically in a criminal case it's going to be be quiet. But in a longer, more eloquent description of why that's so, and the police, after that's done, are free to try to ask the person questions. The person's free to not respond and there's no downside to not responding. In fact, things that you say that are helpful to you cannot be used to assist yourself. Anything you see that's unhelpful can be used to assist in convicting you, which is why the advice is going to be shh, don't talk. But that's hard to follow, that's hard to carry out. Now there's a separate principle in Canada which is referred to as the common law of voluntariness principle, and the idea there and it's separate and predated to even having the charter and the right to speak to a lawyer when you're arrested.
Michael Mulligan:And the idea with the common law of voluntariness issue and it's common law is the idea that if the police manage to extract a confession from somebody by, for example, you know, threatening them right or promising them something in a way that causes them to think, oh my God, I better say something. Like, let's say, a police said to you, you better confess to the murderer, I'm going to shoot you. The person says, okay, I did it right. Or, conversely, if you confess right now, you'll get a very short sentence, I promise you, and the person says, okay, fine, I did it right. Those things could be viewed as not voluntary in the sense that the person didn't really make a choice out of their free will to say, yeah, I did it, you know, when the police were pointing a gun at them or threatening to kill their family or something right in some extreme case. And so that's the origin of that.
Michael Mulligan:There's another component to that concept of common law voluntariness that if the police engage in trickery that's how it's described in a way that would make it so the person can't really decide whether they're going to talk or not. That can also make a statement inadmissible at common law, and there have been some examples of that for previous cases that deal with common law voluntariness. Some of the examples would include things like, let's say, the police dress up as a priest and come into the cell and say I'm here to take your confession and the person says, oh, yes, I got to save my soul. You know, I did it right. That is very likely to be involuntary, right On the basis of the policing. Or let's say, the police pretend to be a lawyer Hi, I'm the duty counsel here, you know, just tell me what happened so I can give you legal advice. And the person says, okay, fine, I did it right. That's also very likely to be inadmissible, but it's a pretty high threshold. The talk is, you know the language used around those cases is the conduct something that would shock the community and I think most people would agree? Pretending to be the defense lawyer to get information from somebody that's just not on? Or pretending to be a priest and save your soul to get a confession? That's not on either. Right, but there can be a judgment call about, well, what amounts to that kind of unacceptable community shocking conduct.
Michael Mulligan:And this case? First of all, it was a judge alone case, which meant both the Crown and the defense agreed to the judge just trying to murder case. Usually it's the jury but judge alone case. In this case the police conduct. After the person had spoken to a lawyer to get some advice on the telephone, they engaged in 48 hours of interviews, involving some of them very long interviews, and eventually they got to the point where they were able to get some advice on the telephone and they got to the. The police were telling him things like well, you've already been convicted of that conspiracy, you can just talk to us, that'll be helpful. Nothing can be used to cause you a problem. You've already been convicted of that. It can't get any worse. Why don't you talk to us and eventually got the man to say things that implicated him in the actual murder?
Michael Mulligan:At the trial found that the police conduct did amount to that sort of trick, police trickery which would shock the community in the sense that you know they, after 48 hours of interviewing this guy no lawyer of course, during that he spoke to a lawyer earlier, um, telling him things about, for example hey, don't worry about it, you can talk to us, it can't be used against you. You know about double jeopardy. You've already been punished for that. The judge had found at the trial that that did amount to, given the length and method of the interviews and those kind of misleading things the fellow was told about by the police, that it did amount to that kind of police trickery which crossed the line into shock the community, and so he was acquitted. The Crown appealed that and they ultimately were successful.
Michael Mulligan:It's interesting to note the Crown can't generally appeal on a factual finding. They can't say well, that judge shouldn't have believed somebody. But they can appeal on an error of law, and here the Court of Appeal found this was an error of law, that there just wasn't a basis on the court of appeals view, looking at the transcript of what was said, to come to the conclusion that there was police trickery of the sort that would shock the community. And so that was a court of appeals assessment. And the result of that is that, even though this man had a trial and even though the judge found that the statement that he made after the 48 hours of interviews was not voluntary in a common law sense because of what the judge found to be that kind of police trickery, the court of appeal found that it wasn't to that level and that there wasn't a basis for the trial judge to have come to that conclusion, basis for the trial judge to have come to that conclusion. And so the result of all of that is that there will be a new trial ordered and the presumptively, if the evidence comes out the same way, then the whatever the man said after the 48 hours of interviews by the police or interrogations by the police will be admissible at the new trial and we will have to wait and see whether the man is found guilty on the second go-round for this terrible murder. He probably has now just finished serving his 13-year sentence for the conspiracy to commit murder and now we'll get a retrial on the actual murder charge.
Michael Mulligan:So that's what common-law voluntariness is. That's what the culpatory statements are, as opposed to an exculpatory. I didn't do it right and that's the way a judge has to analyze it. Separate from that issue of did you get to speak to a lawyer first, and so all of that, I suppose, is also to say if you're arrested and the police are interrogating, you, don't talk. It's not going to help you. But that's, of course, very hard advice to follow up on, particularly when you're sleep deprived and they're going at somebody for 48 hours. So that's the latest from the Court of Appeal on common law voluntariness.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Michael, pleasure as always. Thank you so much. Always great to be here. All right.