Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Sexual Assault Charges, Suicide, and Hit-and-Run
Our conversation begins with a deep dive into the charge approval process for sexual assault, where we illuminate the nuances between the standards required for police arrests and those for Crown charge approvals. We tackle the challenge of relying solely on the versions of events provided by complaints due to the lack of independent witnesses or forensic evidence. Through a discussion on trauma-informed interviewing, we ponder its potential impact on case outcomes and highlight the importance of maintaining fairness by not labelling complainants as victims before trial proceedings.
In the second half of the show, we tackle the sobering realities of hit-and-run cases. We explore an ICBC claim following a hit-and-run accident in Vancouver, emphasizing the importance of promptly and actively pursuing insurance coverage by identifying at-fault drivers rather than relying entirely on police investigations. To enrich this discussion, we welcome Michael Mulligan of Mulligan Defence Lawyers for his regular Legally Speaking segment, where he offers invaluable legal insights and expertise. Join us as we navigate these legal intricacies, offering you a rich understanding of the processes and implications at stake.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for Legally Speaking, joined by barrister and solicitor, with Mulligan Defence Lawyers, Michael Mulligan. Morning, Michael. How are we doing? Hey, good morning.
Adam Stirling:I'm doing great. Always good to be here.
Adam Stirling:Lots of interesting stories on the agenda this week. Where shall we begin?
Michael Mulligan:Well, I thought, before getting into the cases that we've got on the official agenda for today, it might be useful to provide some insight to listeners about what the charge approval process actually looks like in sexual assault cases. Perfect, thank you, and I should say you've correctly expressed sort of what the charge approval standard is for Crown right. They need to be satisfied there's a substantial likelihood of conviction and it's in the public interest to proceed. The legal threshold for the police to arrest somebody is lower than that. They just need to have reasonable grounds to believe that somebody's committed an offense and they can arrest them. Now here's how that plays out in 2024 in the context of a sexual assault allegation.
Michael Mulligan:One of the realities with sexual assault allegations is that they ordinarily are allegations of things that would virtually, by their nature, have occurred in private and well and so, unlike almost any other events where you would expect there to be things like some other witness who might have observed something or something occurring in public right, some other witness who might have observed something or something occurring in public right, there is often, in sexual assault cases, absolutely nothing other than the version of events provided by the complainant. Now, I should say, sometimes there can be forensic evidence like, for example, dna evidence that might establish, for example, there was sexual activity involving two people, but almost never will there be forensic evidence or independent witnesses that would establish things like whether sexual activity was consensual. And so in many sexual assault cases, the investigation amounts to almost nothing other than a complainant saying this happened to me. And, moreover, the approach taken often in modern times the police engage in what they refer to as a trauma-informed interview of the complainant, which means asking them what happened, frequently not asking probing questions, saying to the person you're very brave for having come forward, I believe you, and then making sure you don't interview them again. So there wouldn't be any inconsistent statement that in many sexual assault cases in 2024, is the sum total of the case investigation, and so it is.
Michael Mulligan:While I appreciate this may not be a politic thing to be saying, it is one of the offenses that somebody who is substantively innocent is most likely to be charged with, and that is because there's often nothing but the version of events from the complainant to support the allegation. And that's not a comment on the particular case of these police officers and that person who tragically took his own life. There could be more right. Sometimes persons confess to something right, or sometimes you know there are other things which would give you a greater degree of confidence.
Michael Mulligan:But in 2024, the reality is when somebody goes to the police and says I was sexually assaulted, I did not consent to the sexual activity in the bedroom last night, the reality is that the police are going to ordinarily wind up simply arresting the accused and Crown will wind up charging them and the only evidence is the version of events provided by the complainant. And unfortunately and I don't think this is how things should proceed but the very first time that anyone is asking sort of probing, difficult questions of the complainant about the version of events or what they say happened is at trial, and so it is a category of offense where there simply is a high percentage of people who are charged, who just are innocent, and it also has the effect that there is a because of people who are charged who just are innocent, and it also has the effect that there is a because of how those investigations occur. There is a of cases that proceed to trial. It's also a category of case for which there is a high rate of acquittals, and that is because there is no other evidence to confirm it. Right, the entire case is premised on the version of events the complainant provided, and because the police engage in this trauma-informed interview approach where they don't challenge the person on their version of events or do anything else, it's a matter of, yes, you see this happen, we believe you, you're very brave for having come forward, and they're accused as arrested and charges are approved on nothing but that. Now, there may be more in this case.
Michael Mulligan:This is no comment on that particular central Saanich case, but the listener should be aware that it is routine that there be criminal charges approved with nothing but a version of events from a complainant, approved with nothing but a version of events from a complainant. And I suppose the flip side of that is, if that wasn't so, you would not want to live in a world where there could be sexual assaults committed with impunity in private, right, because often there is going to be nothing else and nothing else would be expected. Right, the entire case is premised on somebody saying I did not consent to this sexual activity. That's it and nothing else. You would not expect there to be another witness standing there or video recording and no dna will tell us whether there was consent or not, um, and so we really do need to, where there are these kind of allegations made, not start from the proposition that the person having made the complaint is indeed the victim.
Michael Mulligan:They may be right, but you know, the fact that a charge was approved or somebody has made a complaint does not necessarily translate to that conclusion. So, as the person who responded to your earlier comments, the appropriate way to respond to the person would be the alleged victim or the complainant, because at this point there hasn't been anything more done that would indicate any greater degree of certainty about what transpired. So it's a tragic case and, as I said, I don't have any insight into the evidence in this particular case. Perhaps there is something more than what I've indicated, but if you have a historic allegation of sexual assault, often the only evidence will be the version of events provided by the complainant. I'm thinking.
Adam Stirling:The other charge was breach of trust, and I know Deputy Chief Wilson said that there was a covert operation, that evidence was collected and I believe breach of trust includes either a willful or deliberate element in terms of mens rea, doesn't it?
Michael Mulligan:Yes, but we have to bear in mind, sir. Well, what is that allegation? It's been announced that this is an allegation of sexual assault, while I think on duty, and so what exactly that amounts to is unclear, it's not well defined here, and maybe there's something else that would support that. But again, it is not at all uncommon that there be sexual assault allegations, somebody arrested and Crown approving the charges, with nothing in support of them other than the version of events provided by the complainant. And the complainant might be reliable. And again, you wouldn't want to have a state of affairs where, unless there was some other person observing it, you could not have a charge approved, right, that would not be an acceptable state of affairs. Right, that would allow actions with impunity in private, and that's not the state of affairs in Canada. But it is just important to remember that, indeed, people are arrested and charged with nothing more than that. And the very first time that anyone asks probing questions, right, challenging what the person said to say is at trial. That part I think we could improve upon, right, I mean, I appreciate why there's a motivation to want to be supportive of people who are indeed victims of crime, right, but when the approach taken is anything that a person says when they allege that they are a victim of sexual assault is treated as must be truthful and the immediate response and that is how at least some police officers investigate these things treat the person immediately as must be a truth teller and a victim, because you've alleged something's happened and that might be so, and it may be so in many cases, but it is certainly not so in every case. And so if you take that approach that anyone who makes an allegation must be telling the truth, by virtue of the fact that they made that allegation, and you have a policy in police, as some police detachments do, that they are to engage in this trauma-informed process, which means not challenging the person, trying not to interview them again to avoid inconsistent versions of events from them, and simply assuming whatever you're being told must be true.
Michael Mulligan:One of the results of that is that you will have a higher percentage of people who are innocent charged with offenses, and simply the fact of being charged with this kind of an offense, arrested or charged with this kind of an offense, has devastating implications for people, right, it's the end of their reputation. They're often fired from their employment, and we saw in this case from Central Santa, the most tragic response to that that having occurred without permission, no matter ever proceeding to trial or anything else. But you can imagine that's the end of that person's reputation and career, right? Simply the fact of the you know arrest and charge. And so you know that's important as well, and I guess really that's the point.
Michael Mulligan:Not every person who makes an allegation is indeed a victim. They might be, but often there's nothing to support it other than what they've alleged has happened. The other thing about that kind of charge, that kind of activity, is it's an unusual from a criminal law perspective, because most criminal offenses are things which no one would ever consent to, right, I was shot, or somebody stole my gold bar, or you know somebody you know defeated my wall. Who's agreeing to that? No one. But by nature of sort of sexual assault allegations. Usually that kind of activity is consensual, right, yes, and so you know it can be even more challenging where the particular allegation being made is an allegation of something which most of the time people are happy to be doing together, right, and so that makes it even more challenging, because it's a very different sort of allegation than when somebody's calling and saying, hey, somebody stole my car or you know, somebody stabbed me in the arm. Well, who's agreeing to that? No one. But in many cases the activity would ordinarily be activity that both parties are happy and consensually engaging in. And it can be very difficult, particularly in historic cases, with no other witnesses and no other evidence to try to sort out, you know, whether this particular activity was consensual or not, and the best method we have for that is a trial.
Michael Mulligan:But I suppose I would say there would be some changes to process which I think would improve things, which would include a more skeptical and probing approach taken by police investigating these cases, bearing in mind the devastating impact of this kind of arrest or charge. And you know there are political reasons, you know small political reasons, why you know the police don't want to be seen, as you know, skeptical or challenging of people that are making these kinds of claims. And we saw a few years ago a series of articles that were run in the Globe and Mail where police were criticized for concluding that sexual assault allegations in some cases were unfounded and they were criticized as being insensitive and that these things should be taken as by default true any time an allegation is being made, and one of the responses we've seen from police detachments to that kind of criticism is that sort of trauma informed yes, thank you, you're so brave, we don't have any other questions, and you'll arrest the person and then Crown's presented with a report that says you know, so-and-so alleges this happened, ended with a report that says you know, so-and-so alleges this happened. Okay, again, you're the bold crown that wants to say well, I've somehow determined on the basis of this statement that you're a liar, right, how are they supposed to do that? And so the charge gets approved and off it goes to trial. And I suppose the other element of it is that some of those parties involved police and the Crown and everyone say, well, we'll leave that to the judge that isn't going to be fired or humiliated in the newspaper for being insensitive, concluding that something was unfounded, and we'll just let that thing sort out at trial.
Michael Mulligan:But you know, this tragic local case shows the implications of just being arrested and charged are devastating and whatever happened here, the outcome is a tragedy for the person who took their own life and their family and everyone else. Whatever happened, you know, death wasn't the appropriate response and so, anyways, I thought all those things might just be useful when people are trying to assess. You know, what can we make of the fact that there was an arrest or a charge? Does that necessarily mean there was some kind of compelling evidence to support the allegation? And the answer, broadly, is no, it doesn't. There might have been something here, but that is not a requirement for there to be an arrest or a charge approved. So that's the insight on that terrible case from Central Sandwich. Thank you, michael.
Adam Stirling:That's helpful. I really do appreciate it. We'll take a quick break, Legally speaking, we'll continue right after this. All right back on the air here at CFAX 1070, texture is 71010, saying thank you, Michael and Adam. We need this information to help us and I want to pass on my thanks as well. Michael mulligan and folks. Regular listeners to the segment know that michael mulligan works at mulligan defense lawyers. He represents the interests in the criminal justice system of people who have been accused of crimes, and so he knows exactly what it does take and does not take for people to find themselves swept up in such a system and what can happen. So that's very beneficial insight, michael. We thank you for it. We've got a couple of other stories on the agenda today. What shall we do? We've got eight and a half minutes.
Michael Mulligan:Sure. The next case on the agenda involves an ICBC claim with respect to a hit-and-run accident, and there's some really important lessons in the case that I think many people will be unaware of, and if you don't know about them, you could wind up not having insurance coverage. And so this particular case was a decision involving a claim that arose out of a hit and run accident over in Vancouver. It occurred in 2019. And the fact pattern was a stolen GMC pickup truck went through a stop sign and broadsided a Mercedes with three people in it, t-boning it, causing it to spin around and wind up off the road. So a serious accident. The person driving the truck got out, described as likely wearing a black or white hoodie that's quite a possible range of colors and fled the scene and was never identified. And so, then, what came from this was a claim for the injuries sustained by the people that were in the car the three of them sustained by the people that were in the car the three of them.
Michael Mulligan:Now, this process has changed a little bit since 2019. Because of no fault, with no fault, now you're basically responsible. Now that no one's responsible, you have to purchase your own hit-and-run coverage for injuries and some losses in a hit-and-run accident. So it's either specific hit-and-run coverage or collision coverage, and if you don't buy that you don't get coverage other than medical and other expenses like that. But hit-and-runs can occur in all kinds of circumstances. You can have, like this, an accident where a person runs away. You could have somebody who backs into your car and doesn't leave a note. You can have somebody who smashes into property and takes off. You can have somebody who stops but doesn't identify themselves or gives false identification, things like that. And so they can come in a whole variety of ways. But in this particular case, the way it works at least back when people were responsible for their own actions.
Michael Mulligan:The idea is, pursuant to this section of the Insurance Motor Vehicle Act, that if there's a hit and run accident of that kind you would be permitted in some circumstances to sue ICBC to try to get coverage for your injuries. Now the landmine here is that a person who is making that kind of claim must make all reasonable efforts to ascertain the identity of the other driver in order to be able to sue ICBC, because ordinarily sort of a common law right you can sue somebody who causes some loss to you If somebody backs into your car or smashes your fence down or does something, you could sue the person, but we have this provision that allows you to sue ICBC, where you've made all reasonable efforts to ascertain the identity of the person who took off. Now, in this particular case, the police showed up this is obviously a stolen car and the person fled and caused an accident. The police conducted an investigation for a little over a week and they ultimately concluded there's no other investigation to be done. We can't find this person Now.
Michael Mulligan:The people who were injured in the car did eventually get a lawyer. It looks like the lawyer knew what to do. They hired at that point a private investigator to post signs around the neighborhood, put it in the newspaper and so on, but that produced nothing, probably because that was done a year after the fact, and so this case then wound up at trial with can you proceed with this claim? Have you made all reasonable efforts to ascertain the identity of the person who took off? And ultimately, the legal answer to that was no, and so the number of things in the case people need to know about if you have this kind of thing happen. One is that there are expectations that you make prompt efforts, like the efforts by the investigator that was hired by the lawyer a year later, were not sufficient because they weren't done promptly. And there's an expectation that you do things like put up signs, looking for witnesses, run an ad in the newspaper or otherwise trying to drum up potential witnesses to the accident. And it also makes clear that you can't just offload your responsibility to the police. It's your responsibility to make all of these reasonable efforts and barring a very high threshold, which would be, oh, this would just be impossible, fanciful things, which the judge concluded here. These weren't. He said well, maybe you put up signs, maybe some family member would identify the person who came home after stealing a car, or maybe somebody in the neighborhood would have recognized something, and so the result of not doing that is no claim is no claim.
Michael Mulligan:And the judge in this case, which just came out, pointed out what multiple other judges have pointed out, which is the potential unfairness these provisions result in. And the judge pointed out that some of those could be addressed by requiring ICBC to tell someone hey, you've got an obligation to start making inquiries. They don't have that obligation and they didn't hear. And the net result is the three people injured in the car were unsuccessful in their claim.
Michael Mulligan:And so that's really what I think listeners need to know about, which is, if you wind up in a circumstance where there's a hit and run and appreciating, there are all kinds of different permutations to that, right, you know, was the car tended unattended?
Michael Mulligan:Is it property damage? Is it personal injury? When did that happen Right? Which would all have slightly different legal implications. The starting point is that you should be making all reasonable efforts to try to figure out who that person was, and you know, for example, that might include, you know, if you have some opportunity to like record or take a picture of the person's license plate number, did you do that Right? If you were there, have you canvassed? Have you put up signs? What have you done? And it's not enough to just say, well, I was hurt or I was taken to the hospital, or even enough to say the police were involved. You've got to do it, and so if you are involved in any kind of a hit-and-run accident, make sure you take all reasonable efforts to try to identify the person, or you might find yourself out of luck. So that's the important message on that.
Adam Stirling:All right, just under a minute left. I don't know if we want to try to squeeze this story into that, or maybe save it for next time.
Michael Mulligan:Sure, Maybe I'll just comment on it. The final case was an appeal from an 18-month sentence for a sophisticated shoplifting enterprise and it was a case where one person received an 18-month sentence and another person involved in the shoplifting enterprise got a 12-month jail sentence. The person with the 18-month one appealed it, alleging that the parity principle wasn't followed and that's a principle that similar people for similar offenses receive a similar sentence. And the appeal of that decision from the Court of Appeal dismissed the appeal on the basis that the person who got the longer 18-month sentence for the sophisticated shoplifting was different because they had prior convictions from the United Kingdom and they had a prior outstanding charge from back east when they were engaged in that enterprise. So that's the general concept of parity in sentencing, but it doesn't apply where you've got two offenders who have different backgrounds.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, it's Legally Speaking during the second half of our second hour every Thursday. Michael, thank you so much as always. Thank you so much, always a pleasure. Have a great day. All right, you too. We'll take a quick break.
Michael Mulligan:We're back right after this.