Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Unraveling Justice: Police Misconduct and Complicated Inheritances
Why did former Constable Ferris' questionable actions lead to a legal overturning of drug convictions, and what role did an inadequate defence play in this dramatic courtroom saga? Join us as we promise to unravel the complexities of police misconduct, discredited testimonies, and the impact of mental health on legal defence. With Michael Mulligan of Mulligan Defence Lawyers as our guide, we navigate through a case that underscores how fragile justice can be, hinging on the integrity of evidence and the robustness of representation. This is more than just a legal story—it's a reflection on trust in law enforcement and the resilience of the appeals process.
We also explore a tangled web of inheritance and relationship status with profound implications for estate distribution. Was Sharon and Dick's companionship truly marriage-like, and how does this affect the legacy left behind? Michael Mulligan helps us dissect the judge’s decision, which drew from intimate accounts of the couple’s shared experiences rather than family skepticism. This episode highlights the critical need for clarity in wills, as we confront issues of spoliation and sibling contestation. Prepare for an engaging discussion that lays bare the subtle intricacies of human relationships and their legal ramifications.
Follow this link for a transcript of the show and links to the cases discussed.
It's time, as always, for our regular segment with barrister and solicitor, with Mulligan defene lawyers. It's Legally Speaking with Michael Mulligan. Morning, Michael. How are we doing? Hey, good morning. I'm doing great. Always good to be here. Some interesting items on the agenda today. Up first, I'm seeing drug convictions being overturned and there's a complicated situation around this. One Help set this up.
Michael Mulligan:It is complicated. It's further fallout from a very unfortunate circumstance with the Victoria City Police a now former officer there, former Constable Ferris, who was investigated by the RCMP Anti-Corruption Unit, who concluded this is the language from the judge that he was believed to be involved in 19 instances of misconduct, including associating with suspects of police investigations, divulging details of police investigations to family members and others, improperly accessing police databases, lying to investigators, devolving sensitive information to others. So very serious conduct by this former Victoria City police officer. That's had other fallout that people may be familiar with. There was another local case which involved that particular officer and then an even more unfortunate effort to conceal his involvement with it. But the case that was just dealt with by the Court of Appeal was a serious drug investigation where Constable Ferris former Constable Ferris was one of the central investigators and a key to the trial. The fact pattern was an interesting one. It was a fact pattern involving a large volume of drugs of various kinds GHB, fentanyl, mdma, methamphetamine, heroin, cocaine most of which was found in a large safe which was in an apartment, in a large safe which was in an apartment, and the issue at the trial was whether the accused was in possession of the drugs located in the safe and it was ambiguous because the accused did not own the apartment where the safe was. Somebody else did. The connection made between the accused in the case and this safe full of drugs turned on that Constable Ferris. And the fact pattern was that in the apartment where the big drug safe was there was a smaller safe that also had drugs. The police managed to get into the smaller safe. It had a key which opened the bigger safe. However, this Constable Ferris testified that he went to the home of the accused a different apartment and claimed that he found in the accused's bedroom a key to the larger safe in the bedroom. He didn't document it by taking any pictures of it and he claimed that he found this key and that key opened the safe. And on the basis of Constable Ferris's evidence, the trial judge concluded that there was sufficient evidence to prove that the accused was in possession of all the drugs found in this big safe. The trouble was that that rested entirely on Constable Ferris' not properly documented claim that he found the key in the accused's apartment. There was another officer who could confirm that the key that Constable Ferris somehow got did open the big safe, but the whole thing rested on Ferris. The accused was convicted and sentenced to a significant period of time in custody and An appeal of that conviction was just heard and decided by the BC Court of Appeal and the arguments on the appeal included.
Michael Mulligan:First of all there should be a new trial because the whole thing hung on Constable Ferris, who's been totally discredited. But the second argument that was made was an argument that the lawyer representing by the accused in that case hadn't adequately represented him in the case and on that basis they argued there was a miscarriage of justice and it's clear, looking at the court of appeal decision, that there was reason to be concerned about the lawyer who had conducted that trial. Reason to be concerned about the lawyer who had conducted that trial, and indeed the lawyer who conducted that trial is a Victoria case. The trial lawyer provided an affidavit confirming that he had been at the time of the trial experiencing anxiety and depression that had been worsening and was subsequently diagnosed with a major depressive disorder. And the lawyer acknowledged that he had not done various things at the trial, including challenging the lawfulness of Constable Ferris or Mr Ferris going into his client's apartment to allegedly find this key in the bedroom. That hadn't been challenged and the lawyer acknowledged that he had not challenged the lawfulness of the search of the apartment in which the big safe was found and instead the focus was simply on whether the evidence proved that the accused was in possession of what was found in the safe. Ultimately, rather than in the defense theory, he was just a customer.
Michael Mulligan:There was some there was connection between the accused and rather than in the defense theory, he was just a customer. Uh, there was some. There was connection between the accused and this apartment where the big drug safe was found somebody else's apartment, surveillance of him, you know, coming there, so on, um, but there wasn't, for example, any evidence he had a key to the apartment, right, um, and so there was. The court of appeal said the trial judge was plainly concerned about Mr Ferris's testimony and that Mr Ferris was the only witness who could link the key to the accused apartment or parking there on various occasions. The connection to him was the Ferris' evidence claiming that Ferris went into the accused's apartment and found a key. The key fit the safe.
Michael Mulligan:Therefore the judge concluded that that was good evidence that the accused was in possession of what was in the safe and on the other hand, for example, in that apartment with the big safe and all the drugs, there was other drugs GHB kept in the freezer Maybe that's where you keep GHB. And the judge said well, we're not satisfied that the accused was in possession of the drugs in the safe or in the fridge, sorry, in somebody else's apartment, right. And so the entire thing hung on Ferris, and so ultimately here the court of Appeal allowed the appeal and they allowed the appeal and the Crown agreed that the appeal should be allowed. Just concluding that, yeah, the Crown agreed that the way the case was defended not challenging the search for the key alleged to have been found in the person's apartment, the accused's apartment, or the search of the apartment where the drugs were found, for which there was apparently a warrant, but sometimes there can be a review of whether the warrant should have been issued those things just weren't done and it sounds like as a result of the mental disorder, the major depressive disorder that the defense counsel was suffering from, and so a very unfortunate state of affairs.
Michael Mulligan:Really, the origin of all of this is former Constable Ferris right, and the misconduct that he was determined to have been involved in by that RCMP anti-corruption investigation of him the other background of Constable Ferris listeners may recall is that that same Constable Ferris was being investigated for criminal or that kind of conduct and they left him on the job working while he was being investigated so as not to tip him off, and he had been involved in a serious investigation including firearms. Including firearms. And then, after Ferris was, I guess, they concluded that investigation and he was determined to have engaged in that conduct and removed from the department. The Victoria Police, very unfortunately, in that investigation that he'd been involved with, claimed to end that investigation and four days later restart what amounted to exactly the same investigation, without revealing that Ferris had anything to do with it, to try to remove the taint that would be created by having this person who was himself under investigation at the time. He was the investigator, and that didn't fly either, and so the tale of wreckage that former Constable Ferris has left has not yet ended his entire sentence in the time it took to get from that conviction in 2019 to now at the end of 2024.
Michael Mulligan:So we have a circumstance where a man who may have been innocent has spent a significant period of time in prison on the strength of the evidence from Constable Ferris, and so I guess one of the takeaways from all of this is sort of the importance of, you know, diligent work by defense counsel to try to make sure that this kind of thing doesn't happen. Whether, if those things were challenged right the Ferris's claim about the lawfulness of Ferris's claim that he went into this man's apartment and found the magic key Whether that would have revealed the problem and what was going on with him earlier, we do not know. But in any case that's more legal wreckage caused by that officer or former officer and it just shows you how, if the system doesn't manage to detect these things, just how much harm can occur. So that's the latest from the Court of Appeal and the latest on the wreckage left behind by former Constable Ferris of the Victoria Police Department.
Adam Stirling:All right, we'll take a quick break. Legally Speaking with Michael Mulligan will continue right after this. Legally Speaking continues on CFAX 1070 with Michael Mulligan from Mulligan Defense Lawyers. Our next battle matter, michael, it says with no will, who receives a $3.1 million estate might turn on whether the deceased was in quote a marriage-like relationship. What happened?
Michael Mulligan:Well, the first thing that everyone should remember when they hear this story is go get your will done. So this was a story involving two people, dick and Sharon. Sharon was originally from Victoria, as it turns out, and these two met many years ago 38 years. They had a relationship together. They originally met at the Jericho Tennis Club over in Vancouver and neither of them had any children and didn't have any children during the course of their relationship. And after this 38-year relationship, sharon sadly passed away. Sharon sadly passed away and she was, at the time, 79. And Dick was 86.
Michael Mulligan:And so, without a will, there's a section of the Wills, estates and Succession Act it's section 20 for those keeping score at home that provides that if somebody dies without a will and if they have no children, their estate passes to their spouse. Well, sometimes that's clear, other times it's not. Here, these two are not married, but the legal assessment is whether they were in a marriage-like relationship. What's that? In 2024? And so this case turned on. And then so what happened is Sharon passed away, and then, not too long after, a couple of years later, before the case was decided in 2022, dick passed away, and so the issue then became who gets the money. Sharon had one sibling okay, he was the person who was starting this litigation and if Sharon was not in a marriage-like relationship, then a different section of the Wills, estates and Succession Act when there are no children and no spouse, everything goes to the siblings. So he would get the three plus million dollars. Right, that's the base for the litigation. On the other hand, if they were in a marriage-like relationship after Sharon's passing, maybe Dick learned from Sharon's what was going on with Sharon. Dick made a will and he made a will providing that one-fifth of his estate would go to a good friend that he spent time with at the tennis club and the rest of his estate would go to his three nieces and nephews, because he didn't have any children, and his estate would include, if there was a marriage-like relationship, the three plus million dollars from Sharon, because he would have inherited it and then two years later, it would be passed according to his will. So that's what the whole case turned on.
Michael Mulligan:Now, one of the other interesting little tidbits in this case is that the sibling Sharon's sibling who was disputing that his sister was in this marriage-like relationship, the result of which would be he gets the $3.1 million he was appointed, along with his wife, the administrator of her estate, uh, and had the task of cleaning up her home. That became important because, as it turns out, for two reasons uh, it turns out, and nobody disputed this Sharon was a hoarder, uh, and so that meant several things. One of the things that it meant, um, is that is that it took the SIP, david, a full year, with the help of his wife, to meticulously go through her home, which was packed with all kinds of things she just couldn't part with. Claims made by the beneficiaries of Dick was that they had engaged in what's called spoliation, which is an interesting term. That legal concept of spoliation can occur if you have somebody who destroys evidence. The evidence was relevant, there was legal proceedings known or started or contemplated, and somebody does that intentionally to suppress evidence, right. It's like you know, if there's some key piece of evidence in a civil case and you go and shred it, there could be an inference drawn that, hey, you, probably you might have done that for a reason, right, and there could be an adverse inference about what was there. The other reason the hoarding was important here is that the relationship between Dick and Sharon, which had to be analyzed in painstaking detail for 39 pages by the judge, which is yet one more reason why you should go get your will done.
Michael Mulligan:One of the things about the relationship is that they didn't live together. They spent a great deal of time together over 38 years. She had the evidence was like a key to his apartment parking spot fob uh. They would go on long vacations four or eight weeks together. Stay together in hawaii uh, you know, they had dinner together. Most nights he would meet for coffee, they would play tennis. They were, you know. They spent lots of time together, but they didn't live together, and one of the reasons for that also related to the hoarding problem.
Michael Mulligan:This was evidence that came from Dick before he passed away. He had talked to her about moving in with him, but she just couldn't bring herself to sort through all of her belongings packed into her house. And his evidence was I couldn't packed into her house, and his evidence was I couldn't move into that house. It was impossible. You could hardly move around. It was so packed full of things, and so that was one of the factual things there you can look at.
Michael Mulligan:One of the considerations is are they in a marriage-like relationship? Would be. Are they living together? They weren't, but that was why they would stay together when they were in Hawaii and she would frequently spend time in his apartment but she just couldn't sort her things and he couldn't move in there because of all the junk in the house. I mean, it's still junk stuff in the house. Neutral term. They also had independent finances, right. So that was a consideration, and the judge wound up hearing from different witnesses who knew them about sort of how much time they spent together and going to social events together. There was also an affidavit from Dick when he was still alive Yet another reason why you want to get your will done because one of the considerations on these cases would be was there an intimate relationship between these two people, right?
Michael Mulligan:Or were they just friends hanging out a lot together? And so he had to produce an affidavit about their sex life and how it was passionate and what went on there and so on, and he also, in that context, had to acknowledge one instance of infidelity over that 38 years, had to acknowledge one instance of infidelity over that 38 years, but otherwise indicated that it was a relationship exclusive with one another, and those details had to be aired as part of this analysis. Ultimately the judge concluded that she preferred the evidence from witnesses about friends and so on who spent more time with them than the plaintiff's brother 20 years prior to her passing, and found as well that his evidence in some respects was not reliable. Trying to cast himself in a particular light to further his claim, I think is really what the assessment would be from the judge. And so the judge preferred the evidence of other people, including the friend who she acknowledged had a financial stake in it. He was one of the beneficiaries in the will, along with the nieces and so on nieces and nephew but found that he had spent lots of time with them during COVID. He was in their sort of bubble, meals with them.
Michael Mulligan:Great detail about the nature of their relationship and even though, as I said, they didn't live together, they weren't formally married, they didn't intermingle finances.
Michael Mulligan:With all of that being said, the trial judge analyzed all of the evidence and, of course, that modern reality that not all relationships look the same right.
Michael Mulligan:Sometimes people, you know, have different setups in their life, and so the judge found here that this was a marriage-like relationship, and so the net result of that is that Dick was Sharon's spouse. So Sharon didn't have a will, sharon's $3.1 million all went to Dick. Dick passed away a couple of years later, and so all of the money will then be distributed, uh, in accordance with dick's will, uh, and so all of this, I should say, including uh having to engage in this litigation and air every nook and cranny of their relationship, and so on all could have been avoided had sharon taken the time to do up a will and indicate what her wishes were. You only get to this as a default in terms of what occurs, and if you wish to save all of your beneficiaries the angst of engaging in expensive, time-consuming litigation and you don't want to have all of your intimate affairs reported upon in a Supreme Court decision, get a will and you can save everyone a whole heck of a lot of time. So that's the latest on the hoarding and $3.1 million estate.
Adam Stirling:All right, we have one minute and 40 seconds remaining.
Michael Mulligan:Final case, an interesting one we'll want to pay attention to if you're a video game player.
Michael Mulligan:It is a class action which has now been certified against Electronic Arts, ea, on the basis that they are alleged to have breached the provisions of the Businesses Practice and Consumer Protection Act, which has provisions in it dealing with business practices and deceptive advertising and so forth, and the particular claim being advanced would be an interesting one people may relate to if they have kids that play video games.
Michael Mulligan:Ea, along with other companies, sell loot boxes in video games, and a loot box is a thing which would contain virtual goods that might improve your gameplay, and, in particular, they sell for real money the currency to purchase these things in the game.
Michael Mulligan:And the claim, which has now been certified in BC, is a claim that they didn't properly disclose your actual odds of getting something good and found that the allegation is that you have vanishingly small odds somewhere between 1% and 0.1% of getting what would be described as valuable items in these loot boxes which they're selling. And the claim is that some people pay hundreds or even thousands of dollars in real money to purchase these virtual goods and they have little or no chance of getting what they're hoping for, and so the claim is that that's in violation of that Consumer Protection, business Practices and Consumer Protection Act in BC, and so the litigation will now proceed, and if you're a loot box purchaser, you may well wind up as a member of that class and maybe there'll be some compensation for your unsuccessful loot box purchase. So that's the latest on class actions and EA games.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Legally speaking, the second half of our second hour will be Thursday, michael. Thank you, pleasure as always. Thanks so much. Have a great day. All right, you too.