Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Exploring Judicial Recounts and Racial Profiling Challenges
Experience an insightful journey through the complexities of the electoral process and the justice system with Michael Mulligan, Barrister and Solicitor at Mulligan Defence Lawyers. Ever wondered how a mere 27-vote difference can trigger a full judicial recount? This episode unravels the meticulous choreography behind recounts in the Surrey-Guilford Electoral District. Michael sheds light on how transparency and voter privacy are harmonized, the role of media in maintaining public confidence, and the captivating stories of disputed ballots where every mark counts.
Switching gears, join us as we navigate through a high-stakes case in the Court of Appeal of the Yukon involving allegations of racial profiling during police stops. Discover the intertwining judicial framework between British Columbia and the Yukon and the challenges faced by a claimant attempting to prove systemic discrimination. Michael offers his expert perspective on why the court upheld the trial judge's decision and what this could mean for similar future claims. This episode is your chance to deepen your understanding of critical judicial processes and their profound impact on individuals and communities.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment, joined by Michael Mulligan, barrister and solicitor, with Mulligan Defene Lawyers, legally speaking on CFAX 1070. Morning Michael. How are we doing? Hey, good morning. I'm doing great. Always good to be here. A couple of interesting things on the agenda for today. Do I see a judicial recount on our list?
Michael Mulligan:Yeah, just when you thought you were out of the woods. So what was released are the reasons for judgment on the recount that occurred in the Surrey-Guilford Electoral District. That was the district which had a vote differential of 27 votes between the NDP candidate and the Conservative candidate, with the NDP slightly ahead 27 votes, and so that prompted a judicial recount under the provincial legislation. And the judge points out in these reasons that the fundamental purpose of a judicial recount is to provide a transparent, impartial and reviewable count of the vote to install public confidence in the integrity of the electoral results. Now, that last part, reviewable, is very important, as is transparent, and part of that, like with all judicial decisions, you know a judge doesn't just come in like some scene from the Gladiator and give a thumbs down. You know they have to explain what they're doing right, and that is important both for transparency, so you can say, oh, how did you come to this result and to make it reviewable, so you can say, okay, how did the judge arrive at this conclusion? What did they do? And sometimes, of course, like anyone, they make an error. We correct that with an appeal, and so what was released is something that I think we should all be proud of, which are the judicial reasons for how that really tight recount was conducted. Judicial reasons for how that really tight recount was conducted. And it was conducted over a two-day period, november 7th and 8th, and it was conducted by Justice Liu. And, first of all, the justice sets out how the recount worked procedurally, and that's interesting. It's not dissimilar to what we spoke about before in terms of how a local federal recount occurred a few years ago.
Michael Mulligan:In this case, the recount was held in a large room in the electoral district office. Members of the media were invited to attend. That's important for transparency. There were, like on the federal case, here there were a number of conditions placed on the media's reporting case. Here there were a number of conditions placed on the media's reporting. The accredited members of the media that attended, for example, were not permitted to report or publish information that would identify electors. You know, like somebody wrote their name on the ballot, they can't say hey, looks like Bob Smith voted for the NDP. That would be prohibited. Interestingly, they were also prohibited from identifying the election officials or members of the counting teams or representatives of the parties. I'm not quite sure why that would have to be not published, but that was prohibited as well.
Michael Mulligan:And then there's a description of how that account worked and what was done. The judge said he presided over it but didn't personally involve himself in the counting, but instead set up 10 counting teams, and each counting team was comprised of two elections BC officials and scrutineers from each of the parties. Also, it's worth pointing out, all of the parties were permitted to participate, and there were two other candidates there, one Green Party candidate and one independent candidate. Neither of those candidates chose to participate, probably because their number of votes was so tiny. The independent candidate got 370 votes compared to, for example, the Conservative 8,925, and the Green Party got 824, so not particularly popular, at least in that writing.
Michael Mulligan:And so you had the scrutineers from each of the Conservatives and NDP, then the elections official. One of them would pull each ballot out of the box, hold it up, show everyone and then declare you know, I believe this to be a vote for whichever person, and then, if no one objected to that, the other elections BC official would write that down. And so it would go. Now, if there was an objection from one of the scrutineers or an election official hey, that shouldn't be counted, or this should be counted, then there would be. There was a temporary courtroom established there where the judge would hear submissions, look at the ballots and then make a decision on it, and there are a variety of reasons why a ballot can be, in you know, not valid.
Michael Mulligan:They can include things that we spoke about before, like if somebody identifies themselves on the ballot, writes their name on it or something, or if a ballot's physically different, like if it looks fake, that could be a reason somebody shoves in some other piece of paper. But other reasons include if the ballot marked for more than one candidate or it's not clear who the person wished to vote for, and so that brings us to the. They were only, and so if an issue was identified, what would happen then is council would go over for each of the two candidates. They would, you know, discuss it with each other. If they could come to an agreement, carry on, you don't need a judgment, right? If lawyers agree, yeah, okay, we agree, that should be counted. Count it. If there's a disagreement, then off to the temporary courtroom, and in this case there were only two ballots that wound up in the temporary courtroom Ballot number one this is how it was described the first disputed ballot. Circles beside the names of three candidates, in the circles next to the names of three of the candidates were entirely filled in as black, leaving one candidate empty. The empty spot was for the Conservative candidate and so the Conservative candidate, the Conservative council for the Conservative candidate, said well, that indicates they wanted to vote for the Conservative candidate because they blacked out the other three. That was the argument, even though the instruction is you know you're supposed to put a mark or black out the one you're voting for. Well, this was just the inverse and argued that you know that indicated what their voters intention was, which is the overarching objective here. Right, it's supposed to be interpreted in a broad way to try to count votes, if you can tell what was meant. The NDP objected. Their position was that this was a vote for three candidates, not a clear indication of wanting to vote for the candidate next to whom their name was not blacked out the circle, and so the judge. Interestingly, they looked at that there had been a previous judicial recount, which we spoke about in the Sea to Sky writing. That's one of the two that the Greens won on this occasion. That had a judicial recount in the last election and, like this, there were reasons for judgment posted or issued. And in that case there was a similar thing, where there were two X marks on one of the ballots, and the judge concluded that that amounted to a effort to vote for two candidates rather than trying to cross out two candidates.
Michael Mulligan:Now, this is interesting. Judges are generally bound to make consistent decisions, right, we don't want to live in a topsy-turvy world. You know there's a hierarchy of courts, right? You have the Crown Court, court of Appeal, supreme Court of Canada. You got to do what the higher court tells you to do. It's a hierarchy. But there's also a principle that if the same level of court issues a decision, a considered decision, on a point, another judge of that same court should do the same thing. And the idea again is to prevent topsy-turvy uncertainty with the concept being well, if that judge was wrong, I'm going to do the same thing. It was considered that could be sorted out by the court of appeal, rather than having judges go off and have completely inconsistent outcomes, which makes it hard to organize your life, right? But here the judge pointed out that that passage amounted to this is an interesting concept obiter.
Michael Mulligan:And the idea of obiter is it's like something said in a judgment which really wasn't the core decision. It was sort of a commentary or comment by a judge, because sometimes in a decision like this like this. One goes on for 11 pages. Some parts of it are like carefully considered legal decisions, not to suggest other parts are carefully considered, but they might be a by-to-by comment on something which the judge might not have thought too carefully about. For example, an obiter is not binding on other judges, even as from the Supreme Court of Canada or Court of Appeal, if it's just a comment, not really an analysis, that doesn't bind other judges. Now here the judge should look. The comment about the two Xs was opener, but it's very persuasive, and so, even though the judge wasn't required to do the same thing, that he did do the same thing, on the basis that marking all three except leaving one blank, that, just like crossing or X-ing out multiple ones, could just as easily be an effort to vote for three people as an effort to indicate the one you haven't filled in as the one you want, and so that ballot was rejected.
Michael Mulligan:The second one the judge had to consider was one where there were two marks in two circles Next to the NDP candidate. There was what the judge described this way the mark beside the NDP candidate is comprised of two lines forming what might be viewed as a Y shape or perhaps an incomplete X. Well, sounding pretty good there. Right Problem was marked in a circle. Beside the conservative candidate's name was a straight line. Described this way the line does not touch the edges of the circle. Beside the Conservative candidate's name was a straight line. Described this way the line does not touch the edges of the circle, but it occupies more than half of the circle's diameter, and so you've got a Y and a line.
Michael Mulligan:Now the NDP argument was that should be counted, arguing that the line beside the Conservative's name in the circle was a quote hesitation mark. But the judge found he was unable to accept the submission that it was a hesitation mark. Rather, the mark appeared to be deliberate. It said it's not a mark made by inadvertence, like if somebody you know your felt pens were handed out. You know somebody touched a felt pen down, you might get a dot somewhere. And so the judge concluded that this amounted to putting a line by one candidate and a why by another candidate doesn't clearly indicate what the voter's intention was. You can't tell that.
Michael Mulligan:And so that ballot was rejected, and so that's the outcome of it. It didn't change the result. But I think we should all be proud that we have this process and that you have this degree of transparency and anyone's free to read, okay, what was done and how many things were there and how is this counted, and we can read through carefully how that decision was made. And so we should be proud that we have this system in place so that everyone can indeed be confident that this was done properly and carefully, particularly when there was such a narrow difference. And the other takeaway for everyone listening is, boy, you should really make sure you vote, because it came down to 27 votes. That's not a lot, and so it just shows you just how important it is to participate. So that's the reasons for judgment from Suri Guilford, and we can see how Justice Liu recounted the ballots.
Adam Stirling:Absolutely. We heard about it so much in our newscast. Michael Mulligan giving us the inside story from legal documents as to how that judicial recount unfolded. More Legally Speaking right after this Legally Speaking continues on CFAX 1070, joined by Michael Mulligan from Mulligan Defence Lawyers. Michael up next on our list of matters to discuss this week. It says an appeal from the dismissal of racial profiling. Police stops dismissed.
Michael Mulligan:There's a lot in there, there is a lot in there to unpack. The first thing just to mention about this case is it's a decision from the Court of Appeal of the Yukon. You may think, well, the Court of Appeal of the Yukon, that's kind of obscure. Well, one interesting thing to know is that the Yukon only has a little less than 46,000 people it's like less than half the size of Saanich if you add up all the people that live there. And so it would be a burden to have a Court of Appeal of Saanich right or half of Saanich right. And so if you're a judge of the court of appeal of British Columbia, you're also a judge of the court of appeal of the Yukon we share. And so the decisions out of the Yukon are of interest in BC because even though it's a different court hierarchy up there, well, they're the same judges from the same court of appeal. So we pay attention to what they have to say.
Michael Mulligan:And this was a particular decision, was a decision of Chief Justice Marchand, who's also, of course, the Chief Justice in BC Court of Appeal, and this was a claim brought by a man who described himself as being of East Indian descent, and it was an allegation that he was racially targeted for roadside stops and an arrest for roadside stops and an arrest, and the particular occasions were in December of 2012, two occasions and one occasion in June of 2016. And he was alleging that he had been stopped on these occasions and detained and so on on the basis of his racial profile. And that can be a challenging thing to prove, of course, right and the dispute or one of the disputes in the case is that he wanted to rely upon evidence of 29 other occasions when he had been stopped by the RCMP. Now, the problem he had with that revolved around the pleadings, and the way that works in a civil case is, if you're suing somebody, you write down in the pleadings what are you suing them for, right To kind of focus what's going on, and then the other party would respond to what you're claiming right. Now his particular claim involves claims for these three occasions, but he wanted to lead that sort of general evidence about 29 other times he had been stopped to sort of bolster his argument that the reason he was stopped on these three occasions was racially motivated.
Michael Mulligan:Now, the problem was because of how the claim was phrased or worded. It was a claim for these three stops, not a claim for, for example, a concept of sort of a broader systemic kind of discrimination. And the court points out that there can be claims based on systemic discrimination on the basis that you know, let's say, for example I don't know Indigenous people are provided less in terms of resources for child protection, work or something like that, right, yeah, and the judge, the Court of Appeal, pointed out that systemic discrimination is a scourge and that there can be institutional structures that unfairly impact groups or individuals and there can be claims that are founded in that way. But the Court of Appeals said this wasn't framed that way. He was suing over these three stops, not claiming there was systemic discrimination against people who were against Indian descent or that they were generally being stopped more frequently, for example. And so the problem was and both the trial judge and now the Court of Appeal found that the trial judge was correct to not admit this evidence of what was alleged to be sort of systemic discrimination on other occasions or these other 29 occasions. And there were multiple problems one, the pleadings, but there were also more specific problems Like, for example, he in many cases couldn't precisely remember when they happened or who the officers were involved, for example, and that could be potentially prejudicial against the RCMP on the basis of well, you're claiming somebody did something, but you don't know who it was or when that was, and so that was denied both at trial and then from the Court of Appeal. And so what was left were these three occasions, which is what he specified in the pleadings he was suing about.
Michael Mulligan:And so there was specific evidence, for example from the officers, about why he was stopped on those occasions. Like one of them, the officer's evidence was that they believed that the plaintiff gave him the finger while driving and then noticed that he wasn't wearing a seatbelt and so pulled him over and gave him a ticket for that. And there are other. Each on other occasions there was an allegation that he was stopped, he claimed for racial reasons. The police officer testified that he'd radioed a colleague to stop and check him because he was stopped, he claimed, for racial reasons. The police officer testified that he'd radioed a colleague to stop and check him because he was speeding.
Michael Mulligan:And so for these specific occasions, the Court of Appeal found the trial judge was correct in her conclusion that they didn't demonstrate racial profiling or racial bias, accepting the evidence from the police officers about why they had stopped the man and with respect to those occasions, there were also specific challenges with respect to his reliability, that is to say, the man who was suing his reliability.
Michael Mulligan:The trial judge had found that he had provided internally inconsistent evidence, evidence which was inconsistent with independent evidence, had gaps in his evidence, evidence which was inconsistent with independent evidence, had gaps in his memory, was evasive during cross-examination and provided implausible testimony minimizing his actions and admitted to not being truthful in one of the interactions that was at issue.
Michael Mulligan:And so, with respect to the three incidents he was suing about, the Court of Appeal found that the judge was correct in dismissing his claim and was correct in not admitting these 29 historical interactions, which weren't really what he specified he was suing about.
Michael Mulligan:The Court of Appeal did point out this is helpful, I guess, for future cases what kind of evidence might be admissible in cases where somebody was advancing a claim of sort of systemic discrimination and the court pointed out that the kind of evidence that might be relevant if that's what you were doing would be things like statistical evidence to demonstrate disparity in terms of how different people or groups of people were treated, documentary evidence with respect to policies, expert evidence about connection between you know, for example, race and treatment of a group, testimony from members of organizations seeking to deal with systemic discrimination, or evidence from other members of a protected group.
Michael Mulligan:And so the Court of Appeals pointed out you can have a claim framed in that way. That is the kind of evidence that you would require. But that's just not how this was framed and so, because it wasn't framed in that way, his general evidence about 29 other occasions when he says he was stopped, he believes for racial reasons, was not properly admissible. And so that's the latest from the Court of Appeal of the Yukon, why it's connected to BC and how pleadings matter and the kind of evidence that you might need for that kind of a claim.
Adam Stirling:We have two and a half minutes left and it says attempt to certify a class action against Facebook. Do we have time?
Michael Mulligan:Yeah, I could sum it up in two minutes, all right. So, like many class actions, a lot of the fighting is about whether it should be turned into a class action or not, and this was an effort. This is an effort to sue Facebook, now Meta, and the claim is that the Meta deliberately designed Facebook and Instagram to expose minors to third party content that causes disease, injury or illness, including medical conditions called social media addiction. So that's the claim. One notable thing is that this, like many class actions, there's similar litigation going on in other jurisdictions. So sometimes what law firms that do this kind of work do is they look at, well, what's going on in the US, for example, and say, well, why don't we do the same thing here? And so this was an effort to do that, and so on the fight over whether this should become a class action.
Michael Mulligan:In BC, there is a hearing to determine whether that's appropriate or not, and evidence is required at the hearing to satisfy the judge that it's an appropriate kind of case to be a class action.
Michael Mulligan:Now there's a little bit of loosening of evidentiary rules, including making it permissible to use hearsay evidence in that kind of a hearing, to try to speed it up.
Michael Mulligan:But the problem here at least one of the problems here is that the evidence that the plaintiffs had provided amounted to, in large part, an affidavit from a paralegal that attached a whole bunch of things to it like articles from the internet and news reports and various things, and the judge found that, well, those things, while hearsay is permitted, this is beyond hearsay right.
Michael Mulligan:It's sort of some statement attributed to somebody in a newspaper article that you've attached to an affidavit, and that's a bit too far, and so that evidence is not admissible. The judge did find that the testimony of Mark Zuckerberg, which was given at an inquiry in the United States a congressional inquiry was potentially admissible, but there's going to need to be some verification that the video they're wanting to file of that is accurate, and so it's not decided whether this will become a class action in Canada. But the case I thought was noteworthy because it points out you do need to have some admissible evidence on the decision about whether something should be a class action, and that can't just be stuff you downloaded from the Internet or newspaper stories that you've attached to an affidavit. And so that's the latest on the effort, the class action focusing on Facebook and multimedia or social media addiction. So we'll wait and see what comes of that, michael.
Adam Stirling:Mulligan, with Mulligan Defense Lawyers, legally speaking, during the second half of our second hour of your Thursday. Thank you so much. Thank you so much. Always great to be here. All right, talk to you next time.