Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
7 Years Sentence for Stranger Attacks and $30,000 Forefiture of Murder Money After 30 Years
Unravel the complexities of the criminal justice system as we confront two captivating legal stories in this episode. We begin with the unsettling case of a man whose violent spree of stranger attacks led to a legal battle over his sentence. Despite a traumatic past and serious substance issues, the BC Court of Appeal upheld his seven-year sentence, prompting us to question the balance between justice and rehabilitation. Explore the legal principles of consecutive versus concurrent sentences and the totality principle while grappling with societal challenges around providing treatment and shelter to those who resist it.
The second chapter plunges us into the murky waters of a decades-old murder case that left $30,000 hanging in a bureaucratic limbo. Discover how procedural oversights and jurisdictional disputes have kept this money in legal no-man's land since 1992. Michael Mulligan from Mulligan Defence Lawyers joins us, offering expert insights into the ethical and legal implications of dealing with assets tied to criminal activities. As we discuss the mishandling of seized property—like a forgotten cell phone—the importance of adhering to time limits becomes strikingly clear. Prepare for a thought-provoking journey through the intricacies of law and its impacts on society.
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 Michael Mulligan from Mulligan Defence Lawyers. Morning, Michael, how are we doing?
Adam Stirling:Hey, good morning, I'm doing great.
Adam Stirling:Always good to be here. Some interesting items on the agenda today, including a sentence for a random stranger attack, a crime that we speak at great length about in the abstract and yet following it through the criminal justice system is not something I've had the opportunity to do many times.
Michael Mulligan:Yes, and this is an example of exactly that, and it's a sentence appeal just dismissed by the BC Court of Appeal, and the background to it involved a man, and it started I must say it's several random, stranger attacks committed by the same individual. And it started with an interaction where this man was jaywalking across the street in Vancouver. A car stopped to avoid hitting him and honked. The man pulled out an imitation handgun, pointed it at the car driver and said come on then. So that was the first incident. It didn't involve any harm on that occasion and the gun wasn't real, and he wound up being released. But unfortunately, on December 24th of 2020, he then engaged in a whole series of things, starting on that date. On that occasion, in a Canadian Tire parking lot, he approached a man, produced a machete and struck the man with the flat side of the blade and then punched him in the head several times and then ran off. And then, a couple of days later, on December 31st, he approached a man who was busking on the sidewalk on Granville Street, again with the machete. He said check this out. And slashed the man across the face, claiming that he'd stabbed him on another occasion, which made no sense. The man wound up with 12 stitches. He survived. And then, 53 minutes later, this man attacked another random person who was carrying a portable speaker. He showed up and demanded the speaker. When the man didn't hand over the speaker, he pulled out the machete, struck him on the head and that also wound up with multiple stitches. The police apprehended the man 15 minutes later. Both men who were hit with the machete wound up with permanent scars.
Michael Mulligan:The man pled guilty and after a period of time in custody, with some 800 and something 855 days of pretrial custody, he pled guilty and he was sentenced, as the Crown requested, to a total of seven years in the penitentiary. The Crown sought the sentence saying the appropriate. The Crown's view was the appropriate sentence was eight and a half years, but there should be a concept of totality imposed to come to the seven-year amount. That concept is if a judge is sentencing somebody for multiple things, a judge can take into account what a total appropriate sentence would be, even though if the things were individually sentenced it might be a longer period of time, like if somebody did something once and then next year did something else. So that's what that principle is. So you got the seven-year sentence. He appealed.
Michael Mulligan:The sentence and the arguments first of all involved the man's background. I must say, like many of these people, the background is awful. The man was described as 36 years of age at the time of sentencing. He was homeless, living in the downtown east side, and a pre-sentence report that was prepared indicated that he had a traumatic childhood marked by violence, sexual abuse, absence of a father, and he started his substance abuse problems when he was eight or nine years of age and those things escalated to fentanyl, cocaine and crystal meth the other interesting things that were pointed out there. He said he was unwilling to stay in shelters, he was unwilling to attend treatment programs and he was described as very particular about the type of housing he considers acceptable, which is all interesting considerations when we're having debates about, you know, should there be mandatory treatment or not? What do you do with somebody whose position is I will not stay in the shelter and I will not get treatment? Apparently, he'd been diagnosed with various psychiatric issues Again, that's common with these sort of cases but he would refuse to pick up his medication and, as a result of that combination of mental illness, untreated, severe drug addiction, starting at a young age, he had amassed a criminal record including convictions for robbery, assault with weapons, and had previously served federal penitentiary time.
Michael Mulligan:And so the argument here on the appeal included a concept, an issue about whether the sentences for these various offenses for which he pled guilty should have been. These various offenses for which he pled guilty should have been consecutive or concurrent. So a consecutive sentence is just what it sounds like you would serve a sentence for the pointing the imitation firearm. Once that finishes, then you would start your sentence for the attack with the machete of the Canadian tire and then, when that finishes, right whereas concurrent, they run together, and the judge, in this case the sentencing judge, concluded that the sentences should be concurrent to one another, one after the next, and one of the arguments made on the appeal was that that was not the correct approach.
Michael Mulligan:So that was an error, and the argument made was that the series of things other than the pointing of the imitation firearm after the jaywalking the Canadian tire parking lot, the slashing of the busker and the slashing of the man trying to get his speaker away, that the argument was that those constituted a series of events that were fueled by drug use on that occasion, events that were fueled by drug use on that occasion and there is the general concept or one of the starting principles for a judge to determine whether a sentence should be concurrent or consecutive. Where there are multiple things that happened is to consider whether the acts constituting the offenses were part of a linked series of acts within a single endeavor. That's sort of the general concept. Are these really all part of one thing Like, for example, let's say, somebody is charged with the robbery of a bank and possessing a firearm without a license and driving dangerously while escaping the bank and assault by pushing down the security guard right, for example you might say well, really, all those were one thing.
Michael Mulligan:You robbed the bank and you pushed somebody while you did it and you sped away and you had a gun right.
Michael Mulligan:And so you might say well, we'll figure out what the appropriate sentence is for that whole thing and sentence you to not like a separate sentence for the speeding away from the bank and a separate sentence for having the gun. Figure out what the appropriate sentence is for the bank robbery, whatever, and those things should run together. That would be the concept. But, as the Court of Appeal pointed out, it's not a mandatory thing, it's not an operation of mathematics. You don't say, well, are these part of a single endeavor? If so, it must be concurrent. That's not the law. The Court of Appeal pointed out that that is discretionary. That's sort of a consideration for a judge right, and looking at things like were the acts connected temporally? You know how closely connected were these things you might also consider things like were they sort of separate people involved here? That was a consideration, and so the judge concluded that well, there is certainly an argument about that. Nonetheless, it remained discretionary for the trial judge. There's wide discretion on sentencing right. We don't generally have formulas in Canada. And so the Court of Appeal concluded that the trial judge made no errors in her analysis and she correctly considered the connection between these things, but also correctly considered the connection between these things but also correctly considered the things that separated them, and ultimately the Court of Appeal found that was fine. Another argument the man made was that he was held in isolation for a significant period of time because of course this was back in the COVID-19 days, and so he argued that the 855 days he spent in pretrial custody before being sentenced, a portion of that was in isolation, solitary as a result of COVID-19 medical considerations, and he argued that he should have gotten additional credit. The Court of Appeals said look, the judge was aware of that, took that into account and it's not the law that that automatically results in a reduction in sentence. So again, that was dismissed and so the final result is a seven-year sentence for this man.
Michael Mulligan:So that should give you some idea of how these things are treated, and I guess really the question for all of us will be, at the end of the day, what does this man look like after seven years in the penitentiary? Will he get treatment there, or what are we going to get after seven years? We still have a person who's sexually and violently abused as a child, has been using drugs since he was eight or nine years of age. What is that going to look like when the 36th of the time of sentencing man gets out in his 40s, you know? Are we going to be free of random attacks of the Canadian tire or random pointing of firearms after imitation firearms of drivers? What is that going to look like?
Michael Mulligan:And so I thought it was just a useful case because it does give an overview of how the criminal justice deals with that, and I thought it would just be a good food for thought for people thinking about what should we do and should there be some proactive effort to deal with somebody? What do you do with somebody who says they will not attend treatment, will not stay in shelters and will not pick up their medication for their psychiatric difficulties? Is that a circumstance where perhaps we should get on it in advance rather than waiting for the next machete attack?
Adam Stirling:Very well. This is a very helpful example, michael. Thank you, yeah, all right, we'll take a quick break. All right, Sorry, there's a little bit of a delay. We'll take a quick break here at CFAX 1070. We'll have more Legally Speaking coming up right after this. Legally Speaking continues at CFAX 1070 with Michael Mulligan. With Mulligan Defense Lawyers. Michael. Up next it says $30,000 from a 1992 murder forfeited after years of inaction and buck passing. What happened?
Michael Mulligan:So this all started with apparently a very angry mother-in-law. It all started with apparently a very angry mother-in-law. Apparently, the mother-in-law's family had provided an interest-free loan to their young couple to buy a home child born and ultimately that relationship fell apart and somewhere in there the mother-in-law became homicidally angry.
Michael Mulligan:And she wound up hiring a man to orchestrate the murder of the daughter-in-law? Okay, and the person did so. He hired two other people who shot and killed the woman in Coquitlam two gunshots to the head, I think as she was leaving work, and so naturally there was a police investigation. When the man who was alleged to have been the person who was hired to orchestrate the murders was arrested, $30,000 fell out of his waistband cash and then a search of his home revealed a note that said this the job was done, but the foreman was arrested for questioning. Don't worry, he didn't say anything. Now he's leaving the country and the price is $30,000 more. There's people following him now, so try to get the money together as soon as possible. The best way is the key to the upstairs. Well, I guess there was reason to worry, and I must say, given the inflation that's occurred since the time of all this, I also smiled at the idea that the price for the murder might be $30,000 more. That will get you a few trips to the grocery store, I think, these days, maybe Certainly not getting you a new ferry. And so there was a conviction of all the people involved here the mother-in-law was convicted, the guy who did the hiring with the $30,000 was convicted. The other two people who were alleged to have carried out the physical murder were arrested and convicted, and the $30,000 was at the trial of the first three. It was marked as an exhibit, the idea that it's something to show the jury, sort of okay, well, the $30,000 fell out of his waistband. That seems connected with his note right, important piece of evidence in the trial. But after the trial ended, there was an appeal and so off to the court of appeal. They went. Eventually, the conviction appeals were dismissed, but for reasons that nobody can ascertain, nobody thought to ask that anything be done in terms of forfeiting the money.
Michael Mulligan:There is provision in the criminal code, following a conviction or the end of a sentence, appeal or conviction appeal, for there to be an order to forfeit things, and that would often happen with exhibits that are part of the crime. Right, like the gun. You don't get the gun back after you're released from prison for the murder conviction, right, it's sort of like, okay, you know they're taking the mask and gun and the bag of money, right, but nobody did anything. And so it eventually got returned to the RCMP and apparently just sat in exhibits for years, until 2017 when some hapless constable was tasked with the disposing of the exhibits from this now long-finished murder trial and he discovered the $30,000. It's long forgotten, and when the constable discovered that, in 2017, he turned the money over to the receiver general, who deposited it into a bank account to manage it, rather than leaving it in some bag or whatever in the basement of the RCMP detachment.
Michael Mulligan:But then the legal issue arose of what do we do with this? Right, yeah, nobody dealt with it at the time, and so the RCMP. First of all, they tried asking the provincial crown to apply to go and deal with the forfeiture of this, and their response was this isn't really our problem any longer, given how much time has passed. You know we could have asked for that at the end of the trial, but you know you're going to have to go talk to the federal crown. Ok, fine. So the RCMP asked the federal crown to go and make an application. They try to make an application to deal with this, but the judge concludes that the section they applied under wasn't really appropriate, given how much time had gone by, and so hunts the application. And the judge also points out that isn't this something the province should be doing. They're the you know crown who did the prosecution. So then they are seen to go back to the provincial crown who again say, but in writing, this time from a senior crown, this is not our problem.
Michael Mulligan:And so back to the federal crown they go, and into court comes this application, and so the first of all, the applications made on the basis of the sections of the criminal code that deal with the management of seized property. There's like a code in the code that deals with things like when the police seize property, how long can they keep it for and when do they have to seek permission to continue to keep it, with the idea being you don't want the police just taking stuff and never hearing from them again. Right, and that scheme is intended to be. Things like you know, it's fine, once a charge is laid, that stuff be kept as an exhibit, but you wouldn't want the police to just take something, not ever charge anyone and just keep the money. Right, that's not good. But the concern here was well, this just wasn't done at the time and given all the time that's passed, how should those things all be interpreted? Some of the sections are pretty vague.
Michael Mulligan:The legal principle that ultimately the judge latched onto here is ex turpe causa, little Latin. The concept there is that it's sometimes referred to as the illegality defense principle or the defense of illegality, and sometimes that can come up in other contexts, when somebody is, like you know, trying to sue for not paying a drug debt, or trying to sue somebody for, you know, not paying you know, some other kind of illegal contract or something. Some other kind of illegal contract or something? And here the argument, the issue, was well, should these sections sort of be stretched to deal with this many years after the fact?
Michael Mulligan:Or the other argument was should the court exercise its inherent jurisdiction, which is an interesting thing in Canada, the superior courts that being in BC, the BC Supreme Court, which is where this case is being sorted out they are not just a statutory body. Like, if you're in provincial court, for example, for a judge to do something, they need to find a law authorizing them to do it. Like, okay, show me the section of the criminal code that allows me to do this, or show me something in the Motor Vehicle Act that allows me to do something right. They can't just do whatever they think is fair, they've got to find a legal authority for it. The superior courts, though, do have this concept of inherent jurisdiction, and the idea there is that it's kind of a reserve, a residual power which the court has to, you know, come to equitable resolutions of things, but it's not unlimited and it has to be sort of consistent with law. It's not a freewheeling do-whatever-you-want authority.
Michael Mulligan:So one of the attempts, one of the arguments that the eventually federal crown on their second effort made, was to argue there should be some inherent jurisdiction exercise to keep this money. Well, the judge concluded that was kind of a stretch and isn't necessary here. The judge instead applied that legal ex terpi causa doctrine to interpret the sections of the criminal code that deal with things like the seizure and return of property and how things are to be disposed of when trials are done, and pointed to as well the fact that none of the various people involved with this murder for hire chose to show up and take any opposition to this. They were all notified. Nobody wanted to show up and claim the $30,000.
Michael Mulligan:And so, taking that into consideration and taking into consideration that legal principle, the judge wound up interpreting one of the sections of the criminal code 490, sub 4 for those following along at home that deal with what's to happen with exhibits once there is accused or ordered to stand trial and concluded that that should be interpreted in a way that provides authority to, even this, many years after the fact, authorize the forfeiture of the money. So that's the convoluted legal journey. The $30,000 took from falling out of the waistband of the person who was hired to commit the murder to eventually, many years, being ordered forfeited. So I guess the happy legal result is we're not handing the $30,000 back to the murder-for-hire guy, and so I think I'll come to that we have three and a half minutes left and one more case to cover.
Michael Mulligan:Yeah, final case also involves timing and seizure of exhibits and how there are those sections of the criminal code that try to, you know, place some time limit on how long the police can keep things without charging somebody. The background of the case involved a report coming from Snapchat that they detected an image that appeared to be child pornography. Virtually all service providers have that facility, like anything like Snapchat or Dropbox or any of those. They would have these things that are hash values, like sort of a mathematical fingerprint for images that are known to be child pornography. That's usually how they work, although sometimes there's a more advanced sort of AI that would try to detect it. In any case, snapchat reported that there was an image that met that criteria, at least according to their computer system. They reported the IP address, like the phone number for the device involved that traced back to BC. Police were involved. Police then made some patrols, figured out the address and ultimately got a search warrant and seized a phone from this address. Now, one of the interesting little wrinkles here is that the account used to upload the image believed to be child pornography was an account of a 12-year-old and indeed, when the phone and other things were seized, it was a 12-year-old, which raises all kinds of other potential issues. Right, because there can be circumstances where somebody creates what amounts to child pornography of themselves, unclear whether that's what went on. Was this a child who took a picture of themselves and uploaded it? In any case, that certainly would have been a wrinkle.
Michael Mulligan:The trouble here is that the police seized the phone and then just didn't get around to analyzing it. They got an extension of time to do it, they applied for another extension to do it and eventually they had the thing for more than a was going to have the thing for more than a year without any charges being late, and so they were applying for even more time to look at the phone. And there was like long periods where nothing was done and one of the crown's explanations on this application, when there was not a gap in time between July and September, the Crown said that it was summer vacation period, that things don't move as quickly in the summer. That was one of the explanations provided for asking for yet more time, even though a full year had gone by, and obviously there was just no particular urgency here, like from the time of the original report when the police drove by the home and to getting this search warrant. They even waited two months to do that, and so, ultimately, the judge on this application concluded that there was just no legal basis to give the police yet more time to look at the phone, because one of the criteria to do that is whether the case is particularly complicated such that it would require more than a full year to examine something that was seized.
Michael Mulligan:And so the judge concluded no, they cannot have more time to analyze the 12-year-old's phone, and, however, did point out that the phone can't simply be returned. Nobody wants to take that because it might contain illegal material it would be illegal to possess. And so now what will have to be worked out is what's to be done with this thing. Should it be disposed of or how can it safely be dealt with. It's like if the police seize a bag of suspected drugs, even if no charges are laid, you don't just hand that back over to somebody be illegal to possess it at that time. So we'll have to wait and see what comes of the phone. But the point of all that in this decision is just there are time limits, uh, and you know things are slow over summer. This isn't getting you so far. If you want to keep exhibits of the police, do, and no charges are laid, they've got to get on it, and in this case it was just too long. So that's the case of the 12 year old cell phone.
Adam Stirling:Uh, not, uh, being they're not going to be able to keep it any longer michael mulgan, with mulgan 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.