Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Crown Dating Defence Paralegal Mistrial and Random Stranger Attack of Crown
Michael Mulligan from Mulligan Defence Lawyers joins us to untangle the intricate web of legal challenges sparked by personal entanglements within the courtroom. Imagine a scenario where a defence counsel's paralegal is romantically involved with the Crown counsel during a sexual assault trial. This isn't a plot twist from a legal drama, but a real-life case from Courtenay that led to a mistrial application, questioning the boundaries of professional ethics and the accused's right to know. We navigate through the complexities of this case, drawing parallels with precedents from Canada and the UK, and ponder the judge's authority to declare a mistrial post-conviction.
Shifting our focus to Vancouver’s courthouse, we confront the grim reality of operating in a neighbourhood plagued by violence and open drug use. Despite the Crown Counsel Association's plea for relocation, Attorney General David Eby’s decision keeps the courthouse at its precarious location, raising concerns for all who walk its halls. The need for heightened security measures and the pressing call for addressing underlying social issues become glaringly apparent. As we wrap up, a seemingly trivial lawsuit over a $90 lens coating teaches us a valuable lesson about weighing the cost of legal battles. Michael Mulligan offers his perspective on exercising sound judgment before entering the legal fray, emphasizing the importance of picking one's battles wisely.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment Legally Speaking, joined as always by Michael Mulligan, with Mulligan Defene Lawyers. Morning Michael, how are we doing?
Michael Mulligan:Hey, good morning. I'm doing great.
Adam Stirling:Always good to be here, some pretty interesting issues on the docket for this week. Number one I've always wondered what sorts of rules are in place regarding romantic relationships that might exist between participants in opposing legal battles or situations by way of lawyers, paralegals, staff.
Michael Mulligan:How does all that work?
Michael Mulligan:It would seem we might need one more. Okay, this particular decision is an unfortunate case. It's out of Campbell River here and it was a sexual assault charge which originated from back in 2021. The accused elected to have a trial by judge and jury, so a trial date was scheduled. The first trial date had to be adjourned because the accused was involuntarily committed to a psychiatric facility Never a good thing. Trial was adjourned, new trial date set. At the new trial date, defense counsel makes an application to the judge to allow the lawyer's defense counsel's paralegal to sit at counsel table. That's unusual, but it's not an unheard of thing. One thing to note is that we don't at this point have the best definition of who might qualify as a paralegal, although the provincial government is trying to force changes to the Legal Profession Act so that we'd have paralegals provided to, amongst other categories of people, to individuals who can't afford to hire a lawyer, but that's for another show. So in this case, the lawyer applied for the paralegal to sit at council table. The paralegal apparently was quite involved with the conduct of the defense sitting in on meetings, strategy meetings, showing up at all the trial and so on.
Michael Mulligan:Trial carries on jury trial and eventually the accused doesn't testify and the jury convicts. Okay, off we go. There's a couple of post-conviction applications are scheduled. This is an interesting thing to comment on. One of the applications that was filed following the jury conviction is an application to deal with. Well, on what fact pattern should the judge sentence somebody? Because a jury just comes back and finds somebody guilty or not guilty. They don't explain what they believed or what they didn't believe, and sometimes with offenses there are multiple ways something could have gone on right, or there are disputes about whether aggravating things occurred or not right, and it can be unclear from a jury verdict. Well, on what basis should the judge sentence somebody? And so one of the things that was scheduled was an application to determine. Okay, on what basis should the judge sentence this person? So that gets set In the interim.
Michael Mulligan:A different Crown counsel comes into court prior to that hearing and there is a disclosure that the paralegal who is assisting defense counsel had been dating Crown counsel who conducted the trial. So that then raised the issue. Well, what about that? And the defense counsel stood up and said something about it and indicated that and this was significant said that it turns out, and it wasn't entirely unknown to me that she was dating the prosecutor. And the problem, or several problems, arose from this One is that the accused was not told about this, didn't know about it, nor was the court told about it, and so then this led to a mistrial application by new counsel for the now convicted accused.
Michael Mulligan:Now the first legal issue that arose was and the accused, I should say, filed an affidavit saying that he was in a state of shock and disbelief when he learned about the relationship, that he wasn't told about it, that the paralegal was participating in discussions about strategy, considered her to be part of his legal representation. Had he known about it, he would to be part of his legal representation. Had he known about it, he would have immediately asked for a new lawyer, very upset about all of this. So the first issue that arose, legal issue, is what authority does the judge have to do? Well, what authority does the judge have at that point to do anything about this? The trial itself is essentially over. The jury has convicted him about this. The trial itself is essentially over. The jury has convicted him.
Michael Mulligan:Does a judge have authority to grant a mistrial after a jury conviction, or acquittal for that matter and there's some interesting law around that. One of the cases dealing with that is a Canadian case from Ontario, where a jury comes in after deliberation and judge asks them if they have a verdict and the foreman stands up and says guilty, and the judge and everyone else in the courtroom heard that as not guilty. Oh no, and so the man was released. Oh no, and the jury was going out and one of the jurors saw the man in the parking lot and then asked well, why is this man out? Oh no, convicted him. And so everyone had to get gathered back up and they said no, no, no, we misheard, we coughed. It was guilty, not, not guilty. And so that raised the issue. But what can you do about that at that point?
Michael Mulligan:That actually went all the way to the Supreme Court of Canada, who eventually ordered a new trial, and part of the consideration was that people had all left the building, and one of the things there's supposed to be some finality when a jury finds somebody guilty or not guilty, and there's one of the concerns about that is sort of this concept of being functuous, it's over right, and you wouldn't want, for example, a jury being able to change its mind, like, if a jury finds somebody not guilty and then doesn't like something, they learn afterwards, you go well, no, no guilty then. Anyways, the reverse interestingly happened a few years ago in the UK where there was a jury trial and the jury came in and again there was a cough. When they were rendering their intended-to-be-not-guilty verdict, somebody coughed and the judge heard guilty, as did other people in the courtroom, and so the judge admonished the man and then sentenced him to two years in prison, with the jury sitting there. The jury didn't say anything, and then, after that had ended, then one of the jury foremen asked one of the court staff why did the judge sentence an innocent man to two years in prison, which then caused everyone to have to come back together and unwind that. And so there are two in the UK and Canada, over not many years, two examples of coughing during jury verdicts that led to opposite, incorrect outcomes.
Michael Mulligan:Anyways, the judge had to, with the benefit of reviewing that case law, and others had to look at the issue of does she have any authority to do anything at this point or does it have to go off to an appeal? Right, that would be the other remedy, not that nothing can be done, but can the trial judge still do anything? And anyways, after considering those cases and others, the judge concluded that yep, she had authority to do something. Cases and others the judge concluded that, yup, she had authority to do something. And looked at the fact that some of those cases talk about there being some residual discretion for a judge to remedy an injustice where information comes to the judge's attention after the jury verdict but before sentencing, and everything's completely done, because at some point it's got to be over. Right, you don't want to have a circumstance where somebody can be found not guilty and then two weeks later the judge says well, I thought about it some more and I think I'm going to convict you right, at some point there's this concept of the judge is done. Functus is the term. It's over Any case.
Michael Mulligan:The judge concluded yep, she still has some authority to do something, but should she do anything? And so the judge looked at this issue of what are the duties of defense counsel. What are the duties of crown? Is the fact that somebody on the defense team was dating the prosecutor? Is that necessarily a conflict of interest? And there is a BC Court of Appeal decision where there's a complaint about possible conflict of interest where the fact pattern was the senior partner of a law firm was married to a corporate solicitor for the defendant. That's a little bit convoluted, you've got to think about that. And the Court of Appeal said no, that fact pattern. There just isn't a presumption that because people are married, they're breaching their clients' confidences and sharing information improperly and relied upon. I mean, they weren't people directly involved in the case anyways, but it was sort of a hey, somebody else in the firm is married to somebody else with the other party right.
Michael Mulligan:But there was some reliance placed on the fact that both of the parties were lawyers. They have professional obligations not to, you know, to maintain confidences, right? You're a lawyer. You don't go and tell your spouse about what you're doing at work any more than you would hope your doctor isn't showing up and just chatting about all the you know, embarrassing conditions that somebody might have with their spouse, right? And so that's not enough.
Michael Mulligan:But in this case, the paralegal the evidence was had no legal training and was directly involved with this. And what the way the judge focused it is. The judge analyzed it both from the perspective of the duties that a lawyer has that defense counsel would have, and those duties include various things. They include a duty of undivided loyalty to a client and one of the other things is that a lawyer has a duty of candor to their client, right? So it would have been different circumstances had the defense counsel said to his client look, my legal assistant is dating the prosecutor. Are you OK with that? Right? Yeah, and we said yeah, yeah, that's fine. Ok, that would be a different circumstance. You just haven't told the poor person.
Michael Mulligan:And then also, the judge just admonished the Crown. He found that, even if defense counsel even leaving aside what the judge found to be a breach of the defense counsel's duty of candor found that the Crown prosecutor's conduct in not disclosing the relationship to the court was extremely serious and that alone would have constituted a miscarriage of justice. Right, you know? You said that the failure to disclose the information to the court is conduct so egregious that it creates an appearance of unfairness to such a degree that it would taint the administration of justice in the eyes of a reasonable and objective observer, and so the judge really admonished both parties for breaching different obligations. So the result of all of that is the judge declared a mistrial and it will need to be done over, presumably with not that prosecutor or paralegal, and so it'll be a do-over. So that's the unfortunate case from Up Island, and what can happen when you have some of these sort of complicated relationships, particularly here, where they're kept secret from both the court and the client. So that's the latest from up island, all right.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Legally speaking, we'll continue right after this. Back on the air here at CFAX 1070, Michael Mulligan from Mulligan Defense Lawyers. What's next on our agenda, Michael?
Michael Mulligan:Next on our agenda is a recent sentencing decision that arose out of a random attack, or apparently random attack, that occurred near the Vancouver Provincial Courthouse at 222 Main Street. This was an attack that occurred in February at 222 Main Street. This was an attack that occurred in February and the unusual circumstances of it include that it was an attack that was caught on video. Also, it was the person who was attacked, or one of the two people who was attacked was a Crown Council prosecutor walking to work at the courthouse. Third unusual factor was that the Crown Council at the time was participating in a quote safe walk close quote program whereby, because of the danger in that area of Vancouver, that area of Vancouver Crown Council had hired a security service to walk Crown to and from the courthouse to try to prevent them from being attacked. It didn't work here. Now it doesn't appear that the person who was attacked was attacked because they were crowned. That's significant. Apparently, the attacker attacked another woman nearby as well. Whether having a security guard there had any impact or not is unclear. A person just ran up and really hit the woman, causing orbital bone fracture and nerve damage, and she remains off work still. The accused, for his part in the case was 28 years of age and he's described as living in the downtown east side, with untreated mental illness and self-medicating through substance abuse. So that's the profile Now the several things come out of this.
Michael Mulligan:One thing which I thought was quite concerning, as it speaks to the danger in that area of Vancouver is that the Crown Council Association, as a result of this and I suppose other incidents as well, was calling for the closure of the courthouse and moving it to a safer area of town. And so just think about that. Right, you've got the Crown Council Association president saying that it is so unsafe around the courthouse for Crown Council that the courthouse need be closed and moved to a safer location. Wow, just think about that. Yeah, closed and moved to a safer location. Just think about that.
Michael Mulligan:The David Eby's response was no, there are no plans to move the courthouse due to the safety issues that surround it. The BC Attorney General. Their response included firing the security company that was doing the safe work, safe walk program, although I must say you can watch the video of this online and it looks like the person just kind of runs up like a streak and just punches the crown in the head. I don't know what anyone would do about that. I don't know how being armed would help. I just don't know how you're going to protect somebody from that sort of a completely random out of the blue violence.
Adam Stirling:Working next to Centennial Square. It's a scenario that we've actually put a lot of thought in here as well, and it's difficult, trust me.
Michael Mulligan:Yeah, I mean just having somebody walk with you. I guess they could be looking around for danger, but you know, I don't know how you prevent this. So they fired the security company for whatever good that's going to do, and they've been trying to make more use of the sheriff's service to provide protection. Sheriffs are peace officers, they are armed, so to the extent that could have any impact. The other thing about all of this, of course, is that you know it's very troubling when the Crown Council can't get safely to work. But of course they're not the only justice system participants, right, you've got not only Defence Council who've got to get in and out of these places, but all the other people involved. You've got witnesses, complainants. I mean that particular courthouse is a provincial courthouse. It does provincial criminal in Vancouver. That's an interesting thing.
Michael Mulligan:In most places in the province, including in Victoria, the courthouse, like the downtown Victoria courthouse, has everything in it. You've got in there. The Court of Appeal sits there. You've got the BC Supreme Court. You have the provincial court, the BC Supreme Court, you have the Provincial Court, and those courts would deal with not only criminal matters but also family matters and small claims matters and civil claims. All of that stuff all occurs in one building here. We have another courthouse out in the Western communities which is only Provincial Court, but again that would deal with a whole range of things that Provincial Court deals with there. So criminal cases, family cases, small claims matters, traffic ticket disputes, all of that happens there. In Vancouver there are multiple courthouses around the region but in Vancouver proper they've separated the criminal court, which is at 222 Main Street, from the other main courthouse. People may be familiar with the main one in downtown there which has houses on one side of it the BC Supreme Court and the Court of Appeal and on the other side the provincial court but doing like provincial court small claims and family, and so that's the division over there. But there's just no doubt about it.
Michael Mulligan:The 222 Main Street Courthouse is right in the center. It's right near 100 Block East Hastings. It is the epicenter of drug use in open drug use in Vancouver and has been for many years. I mean I actually started out my career over there frequently and there's no doubt about it. It is a rough area of town but you know things have gotten worse. You know there are areas there even many years ago which you would be. You know you would not leave your car out there if you wanted to see it intact. You came back, or at least you would make sure there's nothing in it that would be attractive to anyone.
Michael Mulligan:Anyways, it's a really worrisome state of affairs. I don't know what the answer to that is, but it's certainly indicative of a very serious problem when the Crown Council themselves are not safe and are calling for the courthouse to be moved. You know we really have to address that in a meaningful way. You know, I'm not sure that whatever solution you might come up with in order in terms of, like having sheriffs help Crown get in and out of the courthouse through the, is really solving anything. Because you want all these other people have to go there. Imagine being a, you know, reading this or watching a video of this. Yeah, be told. Ok, you're the witness to that. You know, break and enter a shoplifting or whatever it might be. Here's your subpoena We'll see you at 222 Bain Street. That's not going to feel too good, you know, and I'm not sure having the armed sheriff walking the prosecutor in as you're trying to dart from the bus stop to the courthouse or whatever it might be, is going to be a very concerning state of affairs. So that's what's going on. That was the sentence. Naturally, they hired an experienced lawyer of private practice to do the prosecution work.
Michael Mulligan:And really at the origin of all of this thing is you've got this 28-year-old man with untreated mental illness living on the street in the downtown east side, who's using drugs all day long. And so, while, of course, this particular event is random, it is not as if this is like a meteor hitting the earth. It's if you leave. You know hundreds of people or thousands of people living on the street with mental illness, no treatment, using drugs, who also have no meaningful facility to get treatment. For that this is going to happen. It's not really random in that way. You know. It's random that this 28-year-old mentally ill man happened to do it, and it's random, I suppose, that the person who he happened to hit and very seriously injure was Crown Council. That's kind of random and unfortunate, but it's not random in the sense that we can't predict what's going to happen if we just sort of carry on with what we're doing Unless you address those underlying issues, unless you address the fact that you've got untreated.
Michael Mulligan:You know people with untreated mental illness and serious substance abuse issues who cannot get treatment, even if they desperately, desperately want it. Abuse issues who cannot get treatment, even if they desperately, desperately want it. This will just continue. And so you know, the answer to it, I don't think, is to provide armed sheriffs to defend the prosecutors as they try to get back and forth to their car. We have to. We just have to address those things, and you know it's also not addressed by firing the security company. I feel bad for them too. You know, it's just some person, some security guy, walking back and forth. I don't know that it would have made any difference if the person was a sheriff with a gun. You know what are you going to do about that? And so that's the latest from the grim circumstance of the 222 Main Street Courthouse in downtown Vancouver.
Adam Stirling:All right, We've got less than a minute left, Michael.
Michael Mulligan:Final case, briefly, was a dismissed appeal from the BC Court of Appeal.
Michael Mulligan:It's an example of how people should exercise some judgment before they go to court.
Michael Mulligan:It was a man who decided to sue an optometrist, claiming breach of contract and fraud, alleging that when he ordered what he believed online to be lenses with a blue blocker coating, that instead they were blue barrier lenses that didn't have a coating on them, and he decided to sue and claim that that was fraud and wound up in the BC Supreme Court for days, wound up with a judgment of $90, and then still wouldn't give up and wound up off in the Court of Appeal appealing the 90-day judgment.
Michael Mulligan:For their part, the person being sued was claiming that counterclaims for defamation and breach of privacy, all of which were dismissed, and breach of privacy, all of which were dismissed, and the case then wound up in the Court of Appeal, taking up yet more court time, and that also dismissed. And so I just mentioned the. I thought it was worth mentioning for the perspective that you really need to exercise some good judgment before you decide to go to court. Not every $90 unhappiness with your online purchase should necessarily end up with days in court and, ultimately, time in the court of appeal.
Adam Stirling:Indeed, Michael Mulligan with Mulligan Defense Lawyers during the second half of our second hour of E-Thursday. Michael, pleasure as always. Thank you. Thanks so much. Always great to be here, all right.