Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Murder Parole Ineligibility Challenge, Crown Sleeps In and Mutual Fund Fees
Prepare to challenge your understanding of Canadian law with our guest, Michael Mulligan, as we unravel three pivotal legal cases making headlines in British Columbia. First, we dissect a bold ruling where a BC judge declared the 25-year parole ineligibility for first-degree murder unconstitutional. This decision could transform the legal landscape, questioning whether longstanding standards align with modern constitutional rights. We explore the historical precedents, including the Supreme Court of Canada's 1990 Luxton decision, and consider the implications of evolving legal interpretations on future cases.
Switching gears, we uncover the curious dismissal of a case due to a no-show Crown prosecutor, illustrating the intricate dance of jurisdiction between the BC Supreme Court and BC Provincial Court. With procedural nuances in the spotlight, we discuss historical instances like a Crown Counsel strike, shedding light on the complexities of prosecution duties. Lastly, we navigate through the latest developments in a class action lawsuit against HSBC, where allegations of mutual fund misrepresentation have sparked claims of unjust enrichment. Learn the crucial differences between actively and passively managed funds and why these distinctions matter to investors seeking value for their money. This episode promises a deep dive into the dynamic interplay of law and current events, offering insights that are both enlightening and thought-provoking.
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 with Michael Mulligan, barrister and solicitor, with Mulligan Defence Lawyers. Morning, michael. How are we doing? Hey, I'm doing great. Always good to be here. Some interesting items of discussion on the agenda today I'm looking at BC Judge finds 25-year parole ineligibility for first-degree murder to violate the Charter. Is that what that says?
Michael Mulligan:That is what it says, and it's interesting. This has been an issue before that had seemed to have been settled, but it was a number of years ago. The background of it is this If somebody is convicted of murder, whether first or second degree, there's a mandatory minimum life sentence that's imposed on the person, and that part is not being challenged. What's at issue here is what's referred to as the parole ineligibility period, which is a period of time for which a person who's convicted of murder, first or second, cannot even ask for parole. Being eligible to ask for parole doesn't mean you get parole. It just means you can ask right. And so for first degree there's a mandatory minimum parole ineligibility period of 25 years. For second degrees, between 10 and 25 years. But again, that doesn't mean you get out. Then. It just means they'll receive your application. It may go nowhere, right, but the challenge here was to that mandatory 25-year period of ineligibility to even ask for parole on a conviction for first-degree murder.
Michael Mulligan:The case itself is out of Nanaimo and it involves a man who pled guilty to committing first-degree murder. He killed his former romantic partner. The background of it is that they were living together. She was pregnant. The relationship deteriorated. He moved out, she terminated the pregnancy and he then did a number of things, including searches on his iPad, which included things like what do you do if you believe in an eye for an eye and your child was killed? Killing someone with a baseball bat? Time needed to kill someone with a baseball bat and when you want to kill your ex?
Adam Stirling:those were the search stones on his iPad. That's not good.
Michael Mulligan:And tragically, he, of course. But he went and purchased a baseball bat and came over to Nanaimo where she was living and killed her with a baseball bat in her sleep. Then he went to a park, tried to kill himself by slashing his arms, realized he wasn't going to die, walked away from the park and spoke to a construction worker and told the construction worker that he may have killed his girlfriend and asked the construction worker to call the police. Police were called, he was charged with first-degree murder, came to court and pled guilty. That's the fact pattern.
Michael Mulligan:Now, first of all, with respect to the challenge, there is a Supreme Court of Canada case called Luxton for back in 1990, where the Supreme Court of Canada found that the mandatory minimum 25 year parole ineligibility on a conviction for first degree murder was constitutional. It didn't constitute cruel and unusual punishment, which is the basis of the challenge. And so for some time people thought well, that's that, then they're the Supreme Court of Canada, right, yes and right, and you don't get to just re-litigate something because you don't like it. It's sort of well, right, that's the sort of case to go up the flagpole and there's a decision made and that's that. Then Lower courts follow what higher court says. It's kind of a hierarchy right. Well, not kind of.
Michael Mulligan:It is a hierarchy. Now here the argument made was that since 1990, things have changed and there were two significant changes that defense counsel argued had occurred that should permit the judge to at least reconsider whether the 25-year parole ineligibility on the life sentence is still constitutionally permissible. Ineligibility on the life sentence is still constitutionally permissible and the two changes that were focused on. One was what's referred to as faint hope provisions, and Listeners may have heard about those sort of discussed a few years ago. The idea there was that if somebody had a parole ineligibility of 25 years after they served 15 years in prison, they could make an application to ask that their parole ineligibility be reduced. And a number of years ago those provisions were first of all tightened up. Tightening up that occurred in in 1996 involved you had to get permission from the chief judge or justice in the province that you would have a, and then they changed at various times the exact wording but a substantial likelihood of succeeding right on that kind of an application. And then various other changes were made and then, if the judge gave you the okay to apply, then you had to have a decision of a jury and then that jury decision had to be unanimous that there could be a reduction in your parole ineligibility, all of which would only then allow you to apply and you could still be told no, but in any case, that was tightened up. So that was one change, and then eventually, in 2011, those faint hope provisions were essentially repealed, but only for cases going forward. Right, so you can't like increase somebody's sentence when they've already been sentenced. But the law was changed so that those provisions don't apply at all, right, for cases going forward, and so that's one change, and the Supreme Court of Canada made reference to the fact there was that faint hope clause there when they were deciding the issue back in 1990.
Michael Mulligan:The other changes that have occurred include changes to how somebody can be guilty of first degree murder, and the most common way you can get to first degree murder, rather than second degree murder, is planning and deliberation. Right, we treat it more seriously when somebody like thinks about it, googles you know how do I kill my ex with a baseball bat thinks about it, goes and buys the bat, and then goes and does it right, rather than just you flew off the handle. You know, when somebody did something to you, to go kill them. Both are bad. In both cases somebody's dead, but we did something to you to go kill them. Both are bad, in both cases somebody's dead. But we consider it more serious if you thought about it carefully, googled it a bunch of times and then carefully carried out your plan.
Michael Mulligan:But since 1990, we've expanded the ways you can commit first-degree murder. They include if you commit a murder in the course of terrorist activity, or you commit a murder for the benefit of a criminal organization, or if you commit a murder in the course of terrorist activity or you commit a murder for the benefit of a criminal organization, or if you commit a murder in the course of criminal harassment. So like, for example, let's say you're harassing somebody by, like, following them or sending them messages or something right, and then the person came over and gives you the finger and says something insulting to you or whatever, and you then respond to that by hitting them and they die. Right, you know you could wind up at first degree murder, even though there was no planning for that thing.
Michael Mulligan:It was just in the course of doing something else wrong, like harassing them, criminal harassment. It's hard to imagine how you're engaged in terrorist activity. Maybe your terrorist activity was going to fall short of murder, but in any case we've expanded how you can get there. Was going to fall short of murder, but in any case we've expanded how you can get there. And so, because of those changes since 1990, the judge felt like well, okay, that's fair enough, we can revisit this, even though there was that Supreme Court of Canada case and even though this is a hierarchy right.
Michael Mulligan:And then the way a judge is also required to approach assessing whether there is a sentence would be cruel and unusual has also changed since back in 1990. Now a judge is required to first of all look at the facts of the case on the offender right what I described at the outset and ask themselves essentially would that sentence be cruel and unusual for that person? Right, but a judge now has to go further. And even if the sentence wouldn't be cruel and unusual for that person, the? But a judge now has to go further. And even if the sentence wouldn't be cruel and unusual for that person, the judge has to consider whether in some reasonable hypothetical case it would be a cruel and unusual punishment and consider that as well. Now that brings up an issue of, as in this case well, what's a reasonable hypothetical right? You know, if defense counsel says, well, you know, maybe Mother Teresa was, you know, walking down the street. And you know if defense counsel says, well, you know, maybe mother Teresa was, uh, you know, walking down the street and you know something terribly insulting happened and she was, you know, found to have criminally harassed somebody, but uh, then pushed them and they fell over and died. Well, that would be terrible. We shouldn't put mother Teresa in jail. That might not, that may be a hypothetical, but not a reasonable one right. And so there's discussion about that. And ultimately the ones that the judge looked at were other actual cases, like some of the fact patterns put forward by the defense who, well, those aren't really realistic. But looked at like other cases, real cases where people were convicted and sentenced right, that seemed certainly like a reasonable hypothetical. They already happened, right.
Michael Mulligan:So, and in all of that, ultimately the judge found that the mandatory minimum parole ineligibility is in fact a violation of the right to be free from unusual or cruel and unusual punishment, which is a really remarkable decision.
Michael Mulligan:It's not over, because in this case the defense and crown and judge agreed to bifurcate the hearing, which is to say first of all decide is this cruel and unusual Right? And the judge to that has answered yes, because of those changes, right, at least in a reasonable hypothetical. But in Canada constitutional principles are rights, are not absolute. We have Section 1. They're subject to reasonable limits that can be justified in a free and democratic society, and that analysis has not yet been done, and so the judge has said it breaches Section 12, but we now have to go on and have a hearing to determine whether the breach is saved by Section 1, which are reasonable limits, and so that'll be really interesting to watch. And, as I said, it's a case out of Nanaimo, so it's close by and, depending on the outcome of it, maybe regardless right, we're likely to see this appealed to sort out whether those changes are sufficient to cause a reconsideration of that Supreme Court of Canada case from back in 1990. So that's the latest from Vancouver Island on first-degree murder and parole ineligibility.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers. Legally Speaking will continue right after this. Legally Speaking continues with Michael Mulligan, mulligan defense lawyers, during the second half of our second hour on a Thursday. Michael, as we move on to the next item on the agenda today, I'm reading an appeal from a case that was dismissed when Crown Counsel slept through their alarm. What?
Michael Mulligan:So this is actually a local case out of Victoria and it was a case which was dismissed for want of prosecution, and the idea there is that, well, the fact pattern is that this accused person, who had been charged with various offenses, I think, relating to checks, theft of blank checks, using forged checks, fraud and impersonation she had appeared in court on a number of occasions and this would become important later had, on an earlier occasion, entered a guilty plea to two of the counts on the information those I guess are using forged checks, and the fraud count, and the case was adjourned over to prepare a pre-sentence report, which is a report that a probation officer would prepare setting out the person's backgrounds, would judge consent of them appropriately, and a psychiatric report. So I guess there is some issue with the person's mental state, and so the case was adjourned to allow those things to get prepared. Eventually, then, the woman and her lawyer show up in court for an appearance and there's no crown. The Crown Council's not there, and so the judge directs that they stand down and try to find the crown, and so the court stands down and this is back in December of 2021, and they first of all page crown, like there's a system in the courthouse to broadcast something with speakers all throughout the courthouse. So they page the Crown lawyer. Nobody shows up. Then they also try to reach the prosecutor, I think by email, and then I think the court staff also call the Crown's personal cell phone number because they have that on file and nothing. There's no response and after waiting another 20 minutes the case gets recalled and no Crown. And the judge then dismisses the case for want of prosecution with the idea like well, there's nobody here to prosecute it. Right, we tried calling, we stood down, we phoned sometime later, uh, the uh crown wakes up. I think they were here, ill, not feeling well, and they slept through their alarm. That was the explanation. But by that point the case had been dismissed because no one showed up. Uh, and so this was a judicial review of that decision, um, to determine was it proper in that way to dismiss the case right Now. This is an important thing to remember.
Michael Mulligan:For trials, criminal trials they can occur either in the BC Provincial Court or the BC Supreme Court, and one of the differences between those two courts is that the Superior Court, supreme Court, has what's called inherent jurisdiction. The judges there have jurisdiction that derives not just from the criminal code or statute, but they've got. The Supreme Court has what's called inherent jurisdiction. The judges there have jurisdiction that derives not just from the criminal code or statute but they've got, by virtue of the nature of their appointment authority, to do some things, including controlling their own process, and it's important that that exists. Otherwise you could potentially, I guess, have you know the Supreme Court would be charged with things like you know, reviewing decisions of the government or judicially reviewing things. You wouldn't want a circumstance where the government could just kind of set up the rules and procedures such that they're immune from having the judges look at what they've done. Right, because it's a branch of government and they've got independent authority, independent from legislation, but provincial court judges do not.
Michael Mulligan:Provincial court judges have all of their authority. It has to be found somewhere in legislation and usually in criminal cases, the criminal code, giant big, thick book, right. And indeed there are provisions in the criminal code that allow a provincial court judge to dismiss a case for want of prosecution. No one shows up and there are three particular sections 485, 799, 803. And those sections deal with particular circumstances where a provincial court judge does have authority to dismiss a case for want of prosecution. No one's here, and the two most relevant ones speak about the judge being able to dismiss a case where no prosecutor shows up for a trial, like 799 says.
Michael Mulligan:Where are proceedings in which this part applies? The defendant appears for the trial and the prosecutor, having had due notice, does not appear. The summary conviction court may dismiss the information or may adjourn the trial to some other time and such other terms as it considers proper Right, or may adjourn the trial to some other time and such other terms as it considers proper right. Now, the reason that that didn't apply here is that, first of all, it turned out unbeknownst to the judge because her accused lawyer actually said at the hearing well, my client's prepared to plead guilty, when in fact she had already pled guilty to those two counts in order to allow those reports to be prepared, right and so that's significant, because when the person showed up and when the Crown slept through their alarm and nobody showed up, they weren't there for their trial, right, they were there, ostensibly, I guess, for like sentencing. You've pled guilty. We've got these reports now, right.
Adam Stirling:Yeah.
Michael Mulligan:And so those provisions just didn't apply, and there's a little bit of law about that. It goes back a bit further Also in BC, here back a number of years ago must be 20 plus years ago there was actually a strike, crown Council went on strike and they just stopped appearing in court, and the provincial government tried to hire people to act as scabs to fill in and show up. So they had a few people doing that, but there weren't enough, and so cases were just being called and there was no crown there and in a number of them, the judge just dismissed them. Well, we're going here, case dismissed, right, and some law developed about that in terms of what the proper process is, and one of the things that should happen, bearing in mind the wording of those sections, would be for a provincial court judge to have that authority to dismiss something for want of prosecution.
Michael Mulligan:One of the things that should be happening would be okay, take a plea from the person, right? Okay, you're standing here. You're charged with shoplifting. Okay, how do you plead? Right, if the person pleads not guilty, okay, not guilty, then Crown anyone. Anyone, bueller, bueller, no one. Well, having heard no evidence and no application for an adjournment, I therefore find you not guilty, right. That's where I dismiss it for want of prosecution. One of those two things, because then you're really, you are having the trial Right.
Adam Stirling:Yeah.
Michael Mulligan:Criminal cases always have and this is important to know a next appearance date, like here's the next date, and we have that because basically they're bad news, and if you didn't have a next date yet to show up, well, nobody's showing up, just kind of you know, hey, guess what? I think I'll go deal with my check fraud case today, right? And so the idea is that after each appearance, there'd be either something's got to happen like are we starting the trial today, or is somebody asking that this be adjourned, right, what's next? And so, to get within the ambit of those provisions of the criminal code, there should be, generally speaking, a trial commenced, which could happen in the way I've just indicated. Person shows up, even if it's their first occasion, okay, fine, there's no prosecutor here. You know, we've paged them, we've stood down, we've phoned them. Nobody came. How do you plead? Well, if the answer is guilty, well, I guess that's fine, then We'll carry on. If it's not guilty, then I guess now we're having a trial and there's no one here to run it, and so that's that then.
Michael Mulligan:And so in this case, because the judge didn't have the correct information about the fact that the woman had already pled guilty, right for those reports to be printed and, frankly, there was no one there to tell the judge that I guess maybe the defense counsel should have picked up on it. But the defense counsel here didn't actually ask for the case to be dismissed. The judge just said look, we've paged them, nobody's here, we've stood down, we've phoned, we've emailed no one. So I'm dismissing it.
Michael Mulligan:And had the judge had that additional information? But well, information. But while pleas have already been entered, there may have been a different approach to it. So, in any case, because this wasn't the trial and because provincial court judges have authority only set out in statute, the result would be go back and keep going Now. Also, unfortunately, nobody could find this woman and so she wasn't there for the appeal, but nonetheless, I guess we'll have to track her down from 2021 and go back and sentence her, presumably for those check fraud cases from 2021. So that's the latest on dismissal for want of prosecution.
Adam Stirling:Two and a half minutes remain in our segment today.
Michael Mulligan:Final cases from the Court of Appeal and it's an appeal of a decision about certifying a class action and I thought it was worth mentioning just in part so that people would be aware of what this issue is, so they could be alive to it. And the basis of the claim and I should say the judge at trial did not allow it to be certified as a class action. That was reversed by the Court of Appeal. But the background of the claim is one which may occur, I think, quite commonly, but may not always be subject of a class action claim. The background of it is that subsidiaries of HSBC sold mutual funds to various people and the allegation is that the mutual funds were presented as actively managed funds. And an actively managed fund would be like you've got a bunch of managers who are like trying to pick the right stocks to buy, to try to make more money, right, and that is distinct from a passively managed fund where they're just like buying all the stocks in a particular stock index. The difference there is that passively managed funds have a much lower fee structure, like maybe half of a percent or something, maybe a quarter of a percent, whereas actively managed ones can charge much more, like in this case, an average range is just under 2%, and so the claim here was that, when these things were sold, there was a breach of fiduciary duty, breach of trust, failure to comply with statutory disclosure applications and unjust enrichment on the basis that they were presented as actively managed funds, when in fact, all they were doing was mirroring a market, and so the claim is that these people who bought these things were overcharged for what they bought, for these fees, because no one was really actively trying to pick stocks, and so that's now going to proceed and we'll eventually get a decision on it.
Michael Mulligan:But I also thought it was a case worth mentioning, just so that people reflect upon that and know that there are those two categories of types of mutual funds. A lot of people buy mutual funds and they're RRSP or RESP or whatever it might be, and so it's important that people know there is that distinction and that there is a large difference in terms of how much is charged, and people should be aware that if you're buying one over the other, you're paying a lot more. So you should, first of all, make sure that that's appropriate, but second of all, make sure that you are getting at least what you paid for, because there's a big difference in price. So that's the latest on mutual funds fees and class actions from the Court of Appeal.
Adam Stirling:Michael Mulligan, with Mulligan Defence Lawyers, legally speaking during the second half of our second hour every.