Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Appealing After Absconding, Easements, Airports, and Costs
Discover the serious legal ramifications of fleeing from justice in our latest episode, where we promise to unravel the complexities of absconding from trial and inter-jurisdictional disputes. Join us as we dissect a compelling case from Canada involving a woman who, after facing charges of forging a passport application, fled to India mid-trial, leading to her conviction in absentia. Her attempts to appeal while abroad were denied. We also navigate the nuanced world of easements in British Columbia, focusing on a heated legal dispute over a navigation light easement impacting blackberry field owners. The principle of inter-jurisdictional immunity takes center stage, highlighting federal authority over aerodromes and shaping the court's decision to maintain the easement.
Enhance your understanding of these legal intricacies with insights from Michael Mulligan of Mulligan Defence Lawyers. His expert commentary illuminates how these legal principles impact our daily lives, offering listeners practical advice and a deeper appreciation of the law's reach. Michael's engaging discussion provides clarity on complex issues, ensuring you're up-to-date with current legal trends. Tune in to gain a richer perspective on how legal matters influence both personal and broader societal contexts with an episode that promises to be as informative as it is fascinating.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment Legally Speaking with barrister and solicitor, with Mulligan Defence Lawyers, Michael Mulligan. Morning Michael. How are we doing? Hey, good morning. I'm doing great. Always good to be here. Some really interesting items on the agenda today. I'm just looking at number one. It says absconding from a trial and then trying to appeal remotely. What?
Michael Mulligan:happened here. That did not go well. So the background of this case involves a woman who came to Canada originally on a visitor's visa and she had a child here. Then, apparently, their relationship with the father of the child broke down and she tried to obtain a passport in her young son's name by forging the father's signature. The passport office, I guess, was suspicious and called her about that, and she falsely told them that he was out of the country but had signed the application for the passport. This led to her being charged with a couple of offenses involving attempting to cause somebody to act on a forged passport and making false and misleading statements to procure a passport, both of which are fairly serious. Ultimately, there was a rocky road to get to trial. The description here was that there were four trial dates, numerous changes of defense counsel and ultimately she commenced a jury trial representing herself, during which she was doing things involving ignoring directions from the judge, acting defiantly, and then eventually she just fled. Basically, she didn't complete the trial. She went back to India in February of 2021.
Michael Mulligan:Now the criminal code interestingly has a section 475 that deals with what happens when somebody absconds from their trial, and absconding is like voluntarily not being there. There are a few interesting things in section 475. One is that the judge or jury can draw an adverse inference about whether you're guilty by virtue of the fact that you fled your trial, and here the judge provided that instruction to the jury. The jury was convicted. Also interestingly, in that section there's a provision that allows defense counsel if there was one, although there wasn't one here to continue to act for the person representing their interest in the trial.
Michael Mulligan:Although that's a pretty awkward circumstance when your client has fled the jurisdiction trial. Although that's a pretty awkward circumstance when your client has fled the jurisdiction, I must also say, as counsel, it's also not a great sign of confidence in the quality of the representation somebody might be receiving. But in any case, she was convicted with having already fled the building or fled the country, and she was also sentenced. Oh, then she was then on to sentencing and on that front she took a position. I can't come back to Canada because, of course, she fled in November of 2021. And then what happened, covid?
Michael Mulligan:Oh, yeah, so there were then travel restrictions, she couldn't get back. No one can get back. Get back, no one can get back. And so then the other problem is that we have a provision under the Immigration and Refugee Protection Act which provides that if somebody and this is really important for people to know about who are in Canada but are not a Canadian citizen and that can include somebody who's a permanent resident or indeed somebody who's here on a educational or tourist visa or whatever it might be, in that if you are convicted of a criminal offense for which you could receive a sentence of 10 years in jail or more, regardless of what sentence you actually get, that equals serious criminality. Under the Immigration and Refugee Protection Act, you could get a fine or probation or something, but if, theoretically, for that offense you could receive 10 years or more, that equals serious criminality, which makes you inadmissible to remain in or enter Canada. You're out without a hearing, and that there are some offensive people may not be aware of, like, for example, impaired driving. If you're a permanent resident and you wind up getting convicted of impaired driving, you're out, no appeal, no hearing, you're just out. And so that's how fast that can happen to somebody. It's really important for people to know about that are in that circumstance. You are one mistake away from being deported from the country. And again, no matter how long you've been here right, some people might have been a permanent resident in Canada for 20 years. They just never got citizenship. They get convicted of impaired driving and they're going back to wherever they came from. So be alert. Now here she said well, I can't come back for that reason and because of COVID, and so her sentencing hearing was conducted with, allowing her to attend it by telephone with, and she had counsel helping with that. She was sentenced to six months in prison by telephone, but she did not come back, and she then took the position well, I want to appeal both my conviction and my six-month sentence, which I'm not serving because I'm remaining an Indian, and so that's how this got before the Court of Appeal. Now there is precedent for somebody being allowed to conduct an appeal where they were convicted and are then not able to get back to Canada, and the case she cited was a person who wound up being in Kosovo and, because of that immigration provision I've told you about, they just couldn't get in. They did everything they could possibly do, but they could not get back in, and so they allowed an appeal to proceed with a person not being here. But in her case it was agreed by the Crown that indeed, by virtue of that conviction, she becomes inadmissible and can't get back in.
Michael Mulligan:On that tourist visa, there is apparently a very faint hope provision for a temporary resident permit, which is described as exceptional and highly discretionary, but there's a theoretical. I guess the minister or somebody could intervene to let somebody in, and so she was provided some assistance, saying well, you should apply for that. She didn't. Her position was I don't think I should have to apply for that. I want this to happen right away. I want to come back to Canada because I want to reconnect with my son. That's her underlying issue.
Michael Mulligan:Son's here, she's in India, she's got a six-month sentence after being convicted after fleeing, and the Court of appeal would have none of it. They said, well, look, I appreciate you might have a problem. You're presumptively inadmissible. But there is this sort of faint hope provision and you haven't applied for it, and so it's not going to be in the interest of justice to allow somebody to in some conditional way conduct their appeal such that you know if you succeed. You know if you don't succeed, well, nothing can happen to you anyways, because you're just remaining in India and won't come back.
Michael Mulligan:And so the court concluded that it would not be in the interest of justice to like in that case, for the fellows in Kosovo just could not possibly get back here to have the appeal proceed remotely with the outstanding six-month jail sentence.
Michael Mulligan:Having given the fact that she just intentionally took off during her trial and taking into account all of her conduct along the way involving ignoring court orders she apparently engaged in similar things in the course of family litigation not respecting the court process, failing to comply with court orders, failing to pay fines for not complying with court orders just concluded it just did not make sense here.
Michael Mulligan:And so, even though she filed the appeal within the required time period from India, I suppose she will not be permitted to continue with it because she just didn't make all reasonable efforts, including that sort of faint hope provision, to get back so that the court would have jurisdiction over her in the event that her appeal is unsuccessful. So I guess the short advice is don't abscond or the jury may be told that's evidence that you're guilty or could be evidence of your guilt. The jury may be told that's evidence that you're guilty or could be evidence of your guilt. And here the net result for her is no appeal, and if she wants to come back to try to reconnect with her child, she's going to have a six-month jail sentence to serve, assuming she can get permission to do that. So that's why you don't abscond from your trial and why that might severely limit your ability to appeal by telephone.
Adam Stirling:Michael Mulgan with Mulgan Defense Lawyers. Legally Speaking will continue right after this break. Legally Speaking continues on CFAX 1070 with Michael Mulligan, from Mulligan Defense Lawyers. Michael, the next story. It says a failed effort to delete an easement permitting a navigation light in a BlackBerry field. I feel like I'm just reading a random word generator at this point. What happened here?
Michael Mulligan:It's amazing what people get themselves into, isn't it? So this was a fact pattern out of Nanaimo and it involved the Nanaimo Airport wanting to construct a new series of new navigation light system in an adjacent field, and the basis for doing that was a covenant, and a covenant is sort of a condition or restriction that's placed on property that runs with the property. So it's a little different from, like, a contract which you would enter into with another person or a company or something, because provisions of an easement attach to the land and they carry on if you sell the land to someone else. Interesting here was that back in 2007, the former owner of the BlackBerry field granted an easement to the Nanaimo Airport and the easement permitted the Nanaimo Airport to install navigation lights in the field. It's unclear whether that was paid for, but it can be right. It's like, hey, I want to purchase the right to do something.
Michael Mulligan:Now, I should say in British Columbia, easements and restrictive easements have a long, in some cases unfortunate, history. There is a long unfortunate racial history of easements, including in Victoria, squamish Oak Bay and elsewhere, and you can still see them on some property titles which had racist restrictions saying things like you may not sell this property to anyone who isn't a member of the white race, for example. And those were made illegal only in 1978. And, interestingly, where they are on title, they don't actually like wipe them out. They actually draw a line through them so that it's clear what used to be there, but they're no longer lawful. In fact, it's unlawful to include racial covenants on property, although we have an unfortunate history of that. But here there's none of that. It's just a light, and so the BlackBerry field owners did not want the new navigation light to be installed. Blackberry field owners did not want the new navigation light to be installed, and so they were applying to get the easement removed, which required the judge to analyze.
Michael Mulligan:Okay, how does that work? And indeed there are provisions in the Property Law Act Section 35, for those paying careful attention that allow a judge in some circumstances to remove or modify an easement, and they include various things like there's a change in character of the neighborhood circumstances. There could be various things like it would no longer have any practical benefit. You know there are various listed circumstances, a through E, when a judge is permitted to delete or modify an easement. But an easement is sort of like a property right. Do you know what I mean? It's like if you're the Nanaimo Airport and you've purchased the right to put in your navigation light, well, you've kind of bought that right and if you buy that property with that easement on there, yeah, you own the field but it's subject to that easement and so pretty important to have a look at that if you're buying some property. The objections from the BlackBerry field owner were both some combination of well, this might interfere with the farming and, I guess, aesthetics, maybe the navigation light system.
Michael Mulligan:The reason the airport wanted the lights and this was significant, was one of the arguments was well, this serves no purpose that was sort of one of the arguments of BlackBerry field owners was that there is a light system at the Nanaimo Airport for landing, and those are important. This is a little dated for me now, but when you're coming in to land an airplane, there will often be a lighting system which will assist you in determining are you on the right glide path to land properly at the runway or are you going to land too soon or too late and are you lined up with the runway. And there's some pretty sophisticated and well-thought-out lighting systems that make that possible for a pilot who's navigating by looking out the window. And the lighting system which they have at the Nanaimo Airport is called a Simplified Short Approach Light System S-S-A-L-S for those paying very careful attention. But the regulations involved from Transport Canada require that a newer system be installed, a better lighting system, basically and so that's why the Nanaimo Airport was wanting to put this thing in. They weren't just gratuitously installing some flashing lights in the BlackBerry field. They were doing it because it was a safety requirement, and if they didn't do it it could restrict their ability for commercial traffic to land in Anamo Airport in the future, and so the idea that this didn't have any purpose was not accepted.
Michael Mulligan:The most interesting argument they made, the primary argument the BlackBerry field owner made, is the idea that the easement is invalid because the property is in the Agricultural Land Reserve. And so their argument was well, look, the Agricultural Land Reserve says that the property cannot be used for non-farm purposes. How could you put up a light here? Which is an interesting argument, and that involved an even more interesting principle called inter-jurisdictional immunity, and the concept of inter-jurisdictional immunity is that it prevents the one level of government, like the provincial or federal, from impairing the other's ability to legislate in areas that they have legislative authority over, and aerodromes. Airports are federal, and so the concept there is that you couldn't have, for example, the province. Say sorry, you can only farm here. Therefore no airport may be installed.
Michael Mulligan:We actually had that issue not too long ago in BC, when there were objections to the– additional get the um twinning of the oil pipeline uh, yeah because those are inter-jurisdictional pipelines, are a matter of federal jurisdiction, and what that means is the province is not able to just say well, you can't cut down any trees, I guess that's it for your pipeline. Um, even though the province might have authority generally to prevent people from cutting down trees, they can't use that authority to prevent the other level of government from doing what they're constitutionally permitted to do. That's the basic idea of interjurisdictional immunity. And in the case of airports and agricultural land, there is actually a case dealing with exactly that, and it's a case out of Quebec where some private citizens decided to build an aerodrome on land which was zoned for only agricultural use by the province of British Columbia, and the people built this airport aerodrome and they registered it under the Federal Aeronautics Act. The province then tried to order them to rip the airport out and turn it back to farmland, and that eventually got all the way to the Supreme Court of Canada and the Supreme Court of Canada in fact said no, that principle of interjurisdictional immunity. The federal government has registered this aerodrome and the province of Quebec was powerless to prevent that from happening.
Michael Mulligan:Similar things happen as well with things like cell phone towers, interestingly enough.
Michael Mulligan:So that principle is established, and established by the Supreme Court of Canada, and so the judge analyzed that issue in terms of the argument that the easement was unlawful and concluded no, it's not.
Michael Mulligan:For that very reason, and so the judge also pointed out that when deciding whether an easement should be in place or not, it's not some balancing of interest.
Michael Mulligan:It's like they own it, right, it's owned by the airport.
Michael Mulligan:It's sort of like a property interest, sort of right, a right to be able to do that, and so it's not a matter of balancing like is this inconvenient or bad news for the you pick farm, or how does that weigh up against the need for the better lighting system for planes landing? But even if you did engage in some assessment as to whether the thing had no longer any meaningful purpose, which they also tried to argue they concluded no, this does have a very meaningful purpose, both for the airport itself and for other citizens that might want to fly on planes which may not be able to land there if they don't comply with the updated regulations. And so the net result is that the Nanaimo Airport Commission will be able to go ahead and upgrade their safety lighting system to ensure that the new SFALR system is in compliance with the regulations, and the BlackBerry field owners just have to put up with the fact that there's going to be a light in their field. And so that's how interjurisdictional immunity and easements factor into what happens in the field.
Adam Stirling:All right, just over four minutes left. Costs in small claims court is our final topic.
Michael Mulligan:Yeah, so we talked about costs before, right, and there's a general idea that if you sue somebody and lose or you get sued, you know whatever party wins in civil litigation will often be able to recover some of the costs involved in that process from the other party. And that's to encourage you to settle right. If you're being sued and the case has merit, settle it. We don't need to spend court time on nonsense things right, and those powers are quite broad in Supreme Court when you're suing for substantial amounts of money, but they are more limited in small claims court and I think part of the theory there is many people are unrepresented, you might not have the same level of sophisticated advice about the merits of your claim and, importantly, they want to keep the process simple and manageable. And so, in that context, this was a case where a construction company sued somebody who was getting renovations work done and the people getting the renovations work countersued the renovations company, claiming their deficiencies and breaches of the contract. Ultimately, at the trial, the homeowners won, so good for them. They got an award for $10,202 and the judge said well, you can apply for reasonable expenses in writing. Well, they took that to heart and they filed this claim for various things. That added up to quite a substantial amount of money, a couple of thousand dollars and they included things like witness fees, which is an interesting thing. If you subpoena a witness to attend in a civil case, you can be obliged to pay them like reasonable expenses for their travel, just be the travel expenses. Like hey, you have to fly here to attend, well, you have to pay for the cost of the plane ticket, right, otherwise you could be subpoenaing people to show up and testify and they'd be out all that money but absent, something like that. The courts have concluded that the amount to be paid is pretty modest. Maybe it's your bus fare or your parking expenses, or whatever it might be. Here the successful party tried claiming $250 to $300 per person for a whole list of witnesses, and that was rejected. Basically, you can't get that. Another thing tried on was they tried claiming for production of photocopies and enormous books of material which they had prepared. That got almost nowhere as well, and the court pointed out that you can't bill for your own expenses here. One of the successful parties had paid an employee to help prepare these enormous books, and that's not allowed either. So you can't get that, and so the judge also pointed out that it would be extremely time consuming if the judge or somebody in the registry has to be counting up pages and figuring out whether it should be 10 cents or 15 cents, and so you generally can't get that, although a small amount was permitted in this case.
Michael Mulligan:Another interesting issue people should be aware of is that the successful party was claiming for what's referred to as prejudgment interest. That's an interesting concept and the idea there can be look, look, if you owed money and it took five years to get to the trial, you shouldn't be, you know, you should get interest to put you back in the position you would have been in Particularly important, I suppose in times of high inflation. Right, somebody would much rather pay $1,000 five years from now than now. But the court pointed out that the Court Order Interest Act, the act that allows for prejudgment interest, only allows that where the prejudgment amount is for, like a claim in debt or a claim for like a pecuniary award like money owed. And here the award wasn't for that, it was for damages for breaching the contract, and you cannot get prejudgment interest for damages.
Michael Mulligan:Interestingly, prejudgment interest only comes if it's a award for like debt or an amount of money not, for you know, you breached the contract or I had a sore knee for five years, so I should get more money in interest for the fact that my knee was sore for the last five years after tripping on your sidewalk, and so that wasn't awarded as well. So I thought it was a useful case to people to know about. There is this concept of cost being awarded, and it can even occur in small claims, the small claims context but it's much more limited, and so you may get those absolutely necessary things like copying a few documents or your filing fee, but you're not going to be able to charge for the cost of hiring somebody to produce massive books of material or paying your friends $250 to show up and testify at your trial. So that's costs in small claims court.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Michael, thank you, pleasure as always.
Michael Mulligan:Thank you so much. Always great to be here. Have a great day. All right, you too.