Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
From Traffic Dilemmas to Inheritance Protection
Unlock the secrets to challenging traffic citations and safeguarding your inheritance as we dissect intriguing legal scenarios from British Columbia. Ever wondered about the complexities behind those speed signs in construction zones? Discover how questioning their validity can shift the burden onto the Crown and how this impacts unsuspecting drivers. We'll shine a light on the legal presumptions that surround highway signage and discuss a recent case that brings these issues to the forefront, revealing the puzzling maze drivers might face when confronted with misleading or improperly erected signs.
On a different note, we venture into the delicate balance of family obligations and government policy through the lens of a thought-provoking case involving a Henson Trust. What happens when a woman seeks to protect her $1.8 million inheritance while ensuring her eligibility for government benefits? Hear the compelling arguments and judicial decisions that question societal norms about wealth and public resource accessibility. Plus, we're joined by Michael Mulligan from Mulligan Defence Lawyers, who shares his expert legal insights, helping you navigate the complexities of these fascinating cases. Don't miss this opportunity to gain valuable perspectives from an experienced legal mind.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for Legally Speaking, joined as always by barrister and solicitor with Mulligan Defence Lawyers, michael Mulligan with Legally Speaking. Morning Michael. How are we doing, hey? Good morning, I'm doing great, always good to be here Up first on the agenda. I'm reading. It says speeding and who needs to provide what the signs said. What does that mean?
Michael Mulligan:Yeah, so there are different speeding offenses under the Motor Vehicle Act. In BC there are default speed limits, for example, inside and outside of municipalities. Like, inside a municipality, the default speed limit would be 50, right. But you know, some municipalities are having various lower speed limit signs put up all over the place, and so there's another offense under the Motor Vehicle Act, which is speeding contrary to highway signs. And so one of the issues that arose in a recent case is what is the presumption about a highway sign having been properly put up right? Because you know, let's say, you just make up your own speed sign and go and stick it up outside your house, but when anyone's driving more than 15 kilometers an hour, does that become an offense to you? You get a ticket. What happens? Interesting and that's. It sounds a little ridiculous, but in fact there are signs sometimes put up by other entities, like, for example, maybe you're driving in a school, on a school property, maybe you're driving in a shopping mall or something right. There might be some sign stuck up there, but that wasn't a sign erected by some municipal government. That might be just some sign that the landlord of this whatever mall parking lot decided to put up right, and so there are some provisions dealing with this.
Michael Mulligan:This particular case involved signs for what may or may not have been a construction zone and the particular fact pattern in this case.
Michael Mulligan:It involved a highway where there had been some roadwork done, but it looked like that may have been essentially completed Sunday. The evidence was that from the police officer that the zone was ordinarily 100 kilometer an hour zone, but there were some orange signs put up which had a speed limit of 70 on them, like to do with construction, and the police officer's evidence was that the 100 kilometer signs had plastic bags put over them. Now, the other interesting element and the other evidence here was that there were no workers present. It was a Sunday, a beautiful day, and the signs which indicated it was a construction zone had been turned sideways to indicate they weren't actually doing any construction, and the hapless person who was charged this is another problem pulled onto the highway where there were no 70-kilometer-an-hour signs, like between where the signs were but, leaving that issue aside and the fellow was going, according to the radar check, between 99 and 100, so what the speed limit was?
Michael Mulligan:So the issue was well, what is the speed limit there? He got a ticket for driving contrary to these highway signs. And the starting point is this People may not know about this there's a section in the Motor Vehicle Act, section 201, that provides that the fact that there is a sign up is evidence that the sign was duly erected. Okay, so in an ordinary way, let's say there's what looks like a speed sign that says 15 kilometers an hour right outside your house. Well, that is evidence that there was a duly erected sign put up there. But the question that had to be sorted out in this case is well, what happens when there is some challenge made as to whether that sign is properly there? Right, and in this case the judge pointed out, or judicial justice pointed out there are provisions that both require their signs to be put up when there's construction, saying there's construction going on those ones return sideways, and it's also a requirement to remove temporary signs when there's no longer any reason to have them up. And so what do you do when this, in this case, they seem to be clear evidence. Yeah, there were signs. Usually it's 100. The work signs were turned sideways and no one's working. What do you make of that sort of presumption, or the presumption of regularity they would call it? Like if there's a sign there, we start from the presumption that it's a properly put up sign.
Michael Mulligan:Well, the judicial justice analyzed it from this perspective. He said, okay, well, yes, that is some evidence that was properly put up, but it's not conclusive evidence. And so they then went through what kind of evidence to the contrary has to be established to establish that it's not a proper sign? It's one that, you know, adam made up and put in front of his house, or one that might have been put up by the shopping mall, or some sign that was left up when it shouldn't have been. Well, it's not even a requirement to prove it beyond a reasonable doubt, and even a balance of probabilities is too much. And so what the judicial justice pointed out, referring to a Supreme Court of Canada case, is that once there's evidence that raises what is referred to as an air of reality, to the idea that that sign might not properly be there, like it looked, like it was made in crayon or it was smaller than all the other signs, or whatever right something that would call into question.
Michael Mulligan:Is that real? Should that be there? Did they just leave it up by mistake? What's going on?
Michael Mulligan:Once there's something that gets over that reasonably low threshold of air of reality, then the onus then shifts to the crown to prove beyond a reasonable doubt that the sign was properly erected right. Was there a legislative basis to put that thing up? Uh, and here, uh, that didn't exist, and so certainly that the judicial justice found that, given that the work signs return sideways, there were no workers on the highway and there is a requirement to take down signs when there's not work going on, and that didn't happen here. Now, I should say there's also this obligation to put up signs when there is new construction, widening of a road, repair, marking or other work is being carried out. So I guess there'd be some issue about what or other work is being carried out. So I guess there'd be some issue about what does it mean by is being carried out. Does that mean right now? Maybe on Monday we'll do that, but certainly, given the ambiguity of what was going on, and there were also pictures of what was going on and the police officer agreed yeah, it's usually 100, and there's these bags on them and other signs return sideways.
Michael Mulligan:Once you get to that just relatively low threshold of error reality about whether these things are properly there, then the burden's on the Crown, and if they don't lead evidence to prove beyond a reasonable doubt there's proper legal authority to put these things up, the signs, then the result is there's not enough evidence and you're found not guilty, and that's what happened here. And so it's just important to know how that structure works. If somebody finds themselves in traffic court and it's ambiguous as to whether the sign was real or not, or should have been there or not, as soon as there's an air of reality to that question, crown's got to prove it. It's not enough to just say, yeah, there's a sign that said 15 kilometers, right out in front of Adam's house. That's not going to do it, and so that's the latest from the provincial court on speeding and signs.
Adam Stirling:Michael Mulligan with Mulligan Defence Lawyers, legally speaking. We'll continue right after this commercial break. All right, we're back on the air here at CFAX 1070 as we continue with Michael Mulligan, with Mulligan Defence Lawyers, legally speaking. Up next on our agenda can a will, it says here, be varied to put money in a trust so the beneficiary can keep government benefits?
Michael Mulligan:michael indeed and we've spoken before about applications under the wills, estates and succession act, often referred to the provisions as wills, variation applications and the provisions of that act allow somebody to make an application if they're the spouse or child of somebody who made a will, arguing that they did not make quote adequate provision for the proper maintenance and support of either a spouse or children under the will. Now it's quite interesting that the section requires a judge to determine whether the will, in terms of support left, was, in light of current societal, legal and moral norms, whether the amount of support left was adequate. So there's really pretty broad authority if somebody tries to cut a child or spouse out of a will or whatever. Now, this particular case is interesting because it was actually the reverse argument. It was somebody effectively arguing I can't get all this money, I'll lose my benefits, and so it was an application by a 63-year-old adult child and the substantial estate. The mother who passed away had an estate which pretty uncontroversially, left small bequeaths to her two grandchildren and then equally divided the estate amongst the three children, and each of those beneficiaries would wind up with something north of $1.8 million, so not an insubstantial amount of money. And so why would somebody not want to get $1.8 million?
Michael Mulligan:Well, this particular person was the beneficiary of various social benefits, including subsidized social housing, and to that end, she had a place that she sounds like very much liked over in Vancouver in a subsidized facility, and described where she was living as a quarter unit, and it was a quiet location and a quiet part of Vancouver and she really liked it and didn't want to have to leave there. And as an added benefit, because she was qualified as somebody who had a person with disabilities, it meant that she effectively got this nice quarter quiet quarter unit, for I think it was $485 a month. Basically, the person with disabilities payment was paid in that amount, and so she got to live in this nice quiet quarter unit and she didn't want to lose that, and so her argument was that the mother's will ought to be varied so that she doesn't get the $1.8 million, but instead it should go into what's referred to as a Henson Trust. What's a Henson Trust, you might ask? Well, a Henson Trust is a trust, so it's like money that's being held for the benefit of someone else, where the person who's the trustee, the person responsible for paying out the money has complete discretion about whether to pay out money and, if so, how much. And that model has been something which has been found as a result of previous court decisions and indeed as a result of a policy of the BC Ministry of Social Development and Poverty Reduction, the ministry who, in a guidebook, point out that where there is that kind of a trust set up for the benefit of somebody who might have a disability and it's unclear what the person's disability here, but something that prevents her from working, so she gets those government benefits where that sort of a trust is set up, the money doesn't count in terms of whether they are eligible for the government disability assistance, and so that's something which is recognized by the BC Ministry of Social Development and Poverty Reduction.
Michael Mulligan:And so the argument made here was that the mother had made inadequate provision for her daughter in her will by failing to set up one of those trusts so that she wouldn't get the $1.8 million directly, and by having the money in a trust which would be controlled by someone else, then that doesn't count towards her assets or income, and indeed the BC ministry takes that that if that's how you're getting money, it doesn't count. So you might be a millionaire in terms of the trust setup, but you don't have the money directly, and so you can keep getting the government assistance. And so that's the application that was made. The judge found, yes, that kind of a trust is possible. Indeed, the mother could have set up that kind of a trust, and indeed the BC ministry fully recognizes that as an acceptable planning option. And so people can continue to get benefits, including subsidized housing, if they have money in that form of a trust, because they don't count that as their asset.
Michael Mulligan:However, the judge concluded that, while that is something that the mother could have done, that it doesn't get over the starting point threshold for a will's variation application, which is to say it's necessary that the judge be satisfied that the person had not made quote adequate provision for the proper maintenance and support of the person who's receiving money under the will. And this was a lot of money and there was no argument that it was being like unfairly divided up. In fact, the two siblings didn't even took no objection to any of this. They didn't even bother showing up at the hearing about all of this, because the sister wasn't asking for more money. Effectively, she was asking for less, or at least that she get the same amount but given to her in a different way so that she could maintain her government benefits. The judge found that the equal division of the money between the three siblings did not amount to a failure to adequately provide support for the 63-year-old adult child, taking into account social, legal and moral norms. And even though there is a different structure which could have been set up that might have allowed a person to keep getting government benefits, it wasn't a requirement to do that and that doesn't provide a basis to modify the will so that that result can take place, and so the judge refused to do what was being requested there.
Michael Mulligan:Now I must say, of course, if somebody really really likes their nice, quiet, cornery subsidized housing unit and doesn't want to have to lose that, nothing, lose that, that's there. Nothing requires you to keep the money right. I mean, if you really don't want the $1.8 million, you're quite free to give that away to a charity or do something else with it. But this maneuver won't be permitted and I must say it may be that there should be some consideration given to. You know how these things are dealt with by the ministry when we have a shortage of housing, you know, do you want somebody who's a beneficiary of a very large trust to be able to accept a government subsidized housing unit. Is that desirable? Does that policy? And you know, sometimes I think these things would be set up if somebody has, like a disabled child, if they're concerned about paying for things for them. But it does raise that just really interesting question of what obligation does the government have versus the family's obligation? And is it appropriate that you have a policy in place that allows somebody who could easily afford to pay for very nice housing and so on continue to quite properly receive government subsidized housing by this sort of a structure? Is that something we want?
Michael Mulligan:You know, no doubt this woman she gave evidence that she really liked the house or the apartment. It was very quiet and she felt very supported there, and you know all of that. And she gave some evidence that other types of housing there can be a long wait list for it. That's no doubt true. Right, yeah, there's a shortage of housing generally, that's true. But you know, is this what we want? Is that good public policy? I guess right Now, in this particular case, we'll have to wait and see. But you know, maybe there should be some reflection given to whether that is the appropriate policy for the BC Ministry of Social Development and Poverty Reduction. Do you necessarily want to be subsidizing somebody who is well? While I appreciate it's held in a trust, a millionaire?
Adam Stirling:Yeah.
Michael Mulligan:But that's our policy and that's why we have this case.
Adam Stirling:All right Up next it says an unsuccessful effort to further appeal the issuance of a 24-hour prohibition from driving. I note the further before that appeal.
Michael Mulligan:Indeed. So this is a case out of Oak Bay from a few years ago and it's a case involving a police officer that got a report from a bus driver that there was a vehicle that appeared to be swerving on the road and so, not surprisingly, the Oak Bay police officer pulled the car over, instructed the driver to move his vehicle forward, but then the driver drove off. There's been a slow speed chase, the vehicle stopped again. The officer got the person out of the car and made a demand they provide a breath sample into a roadside screening device. The person struggled to do it, but eventually with that also had bouts of giggling for no apparent reason that also had belts of giggling for no apparent reason, provided a sample and the sample indicated no alcohol. Then the officer did some sobriety tests because of what he thought was unusual behavior even though there's no alcohol, and concluded the person didn't do well on at least two of the sobriety tests that he performed and so issued the person with a 24-hour driving prohibition. And I should stop there for a moment just to mention how that works. That is to say that we have provisions in the Motor Vehicle Act that allow a police officer to prohibit somebody from driving for a period of 24 hours and tow their car away if they've got reasonable grounds to believe that the person's ability to drive is impaired by alcohol or another drug.
Michael Mulligan:Now there are a couple of interesting things about those provisions, and I should say first of all, they're intended to be sort of a quick and dirty roadside police response. You know what I mean Sort of okay, I'm not sure quite what's going on here. You're giggling and weaving, you know, stop driving. Which seems, on the face of it, sort of reasonable. But one of the challenges here is that the appeal mechanisms for these are not great, because sometimes they may be given to somebody who shouldn't have been given one of those things. Now, in this particular case, the fellow who was given one asserted that he had ADHD and he was on the autism spectrum, and that's why he was giggling in response to the breath request.
Michael Mulligan:But I should point out that those provisions for a 24-hour driving prohibition come in two flavors. One is a circumstance where the officer believes somebody's impaired by alcohol and one where the officer believes somebody's impaired by some other drug. Now, the alcohol one's a bit easier because often, or most, police are going to be equipped with these roadside screening devices. Right Again, somebody blow into it to indicate whether there's some screening of alcohol, and indeed the way this legislation works is the police officer can issue one of these even for alcohol, even when they don't have or use one of those things, which is interesting. And it's also interesting that the legislation provides that if a police officer does that like says you know, I think you've been drinking, and hands you a 24-hour driving prohibition, you in fact have the right to demand that you provide a breath sample into a device, and if the police officer does that and the device comes back and shows you have a blood alcohol level of less than 50 milligrams per 100 milliliters of blood, the driving prohibition is terminated. One of the oddities, though, is that they don't have to tell you about that rate, and so most people might not be aware of it, and I guess you'd also have to consider very carefully is that a good idea? Because if it comes back very high, you might find that you're facing more than a 24-hour driving prohibition. Also, when the officer has concluded that they think you might be impaired by something not alcohol, as in this case, there is also a right to if the police officer doesn't perform roadside tests, to demand that they do some roadside testing of you, and if they don't do that, or if the officer thinks you've passed the roadside test, that can also end the thing. But, once again, you have to be very careful about what you want to be demanding, and I'm not sure too many people are demanding that because you don't have to be told about it. But, in any case, that's how the sections work. That's how the sections word it. You have no other right of appeal. If you were, in fact, and the officer either used a screening device or did the testing, which is usually the case, okay, so in this particular case, the officer did do the alcohol test. It came back with zero, did do the other tests for, you know, roadside sobriety and concluded that he thought the person was impaired because of the weaving, the odd behavior, the giggling, and so that was that.
Michael Mulligan:Now, one of the other challenges is that, well, the 24-hour prohibition might, on the face of it, say well, so what? A person's not driving for 24 hours? Why is that a big deal? What happens to people, though, is like for example, if somebody is like a new driver, the result of a 24-hour driving prohibition will often be a longer driving prohibition. The superintendent of motor vehicles look at it and say, uh-oh, you look like a danger, and then prohibit the person from driving for a few months. So that's why there could be issues about it here.
Michael Mulligan:The only mechanism to appeal it beyond those things that I've told you about those issues whether they were done is by way of a judicial review, like going to a Supreme Court judge.
Michael Mulligan:This fellow tried that and lost, so he tried appealing it to the BC Court of Appeal.
Michael Mulligan:That's the latest part of it.
Michael Mulligan:His problem was he didn't do anything for months. He just let the thing drag on and on and then applied for an extension of time to appeal it later and ultimately the Court of Appeal judge who was looking at it just said no, there's just no, it's not in the interest of justice to allow you even more time to appeal this yet again, given that you just didn't move this thing along in an expeditious fashion and, moreover, there doesn't appear to be very much merit to your argument. It's there's, maybe you have some argument, but it's pretty thin on that fact pattern, and so that's the latest. In the Court of Appeal, this fellow was told no, but I thought to the extension of time, but I thought it was worth mentioning, just so people understand what that 24-hour prohibition is, the fact they are very limited appeal mechanisms and there is this right to demand testing, although it may not always be the best idea and it's not something the police have to tell you about. So that's the latest from the Court of Appeal on 24-hour driving prohibitions.
Adam Stirling:Michael Mulgan, with Mulgan Defence Lawyers during the second half of our second hour every Thursday, legally speaking. Thanks so much, thanks so much. Always great to be here. All right, bye now.