Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Deportation Civil Jury Trials and Murder Sentencing
Explore the intricate landscape of Canadian immigration law with us in this episode, where we unravel the surprising realities that can lead to deportation for long-term residents. Our primary focus is a captivating case involving a UK citizen who, after living in Canada for over 70 years, finds himself facing deportation due to organized criminality. The conversation sheds light on the legal definitions that can suddenly place an individual at risk, even for what may seem minor infractions.
Additionally, a heart-wrenching tale on an exploding stove illustrates the challenges individuals face within civil legal systems, highlighting the importance and protection that jury trials provide in civil matters.
As we continue our discussion, we touch on the implications of harsh pre-trial conditions, showing how they may alter parole eligibility for those convicted of murder. Listeners are encouraged to consider the broader context of these legal decisions and how they intersect with mental health and personal histories. This rich dialogue not only educates about the law but also reflects wider societal values and challenges.
Join us in this compelling conversation that not only informs but also provokes critical thinking on justice, fairness, and the legal hurdles many immigrants face. Don’t miss out—subscribe, leave a review, and share your thoughts with us!
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment Legally Speaking, joined as always by barrister and solicitor with Mulligan Defence Lawyers, 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 this week, including a deportation of a UK citizen brought to Canada when they were only one year old.
Michael Mulligan:Yeah, it is an interesting fact pattern and there's a Victoria connection to it. And so the person at issue, his background, is exactly what you've described. He's now 73 years of age. He's a UK citizen, his mom brought him here at age one and, for reasons unknown, he never did apply for Canadian citizenship. And that can become a problem if you wind up in difficulty, and this fellow has had a number of allegations and challenges. He was somebody who was locally. There's a civil case involving this person and ownership of the Sooke Harbour House and apparently a judgment against him involving that issue and an issue, I think, with the Security and Exchange Commission over that, involving that issue and an issue, I think, with the Security and Exchange Commission over that. But this particular case involves a different section of the Immigration and Refugee Protection Act and this is, I think, important for people to know.
Michael Mulligan:If you're somebody who is in Canada and you're a permanent resident, there are a number of provisions in that act which can lead to you becoming inadmissible to remain in Canada. Some of them are probably unsurprising. Things like, for example, if you engage in an attempt to subvert the government by force probably people would take that or if you engage in terrorism or things of that sort, which I don't think would be surprising really to anyone, but there are some sections in there. Oh, another one you can surprise you is if you commit an act against the crimes against humanities and war crimes act, that's also frowned upon. But there are some sections in here that can result in people becoming inadmissible and being removed without any form of a hearing at all. And the one that can wind up, I think, surprising some people is the definition of what's referred to as serious criminality, and the way that works is that act defines serious criminality as somebody who's convicted of an offense and is either in prison for a period of six months or more, right, or you're convicted of an offense which could be punished by 10 years or more. Regardless of what punishment you received, you could have gotten a fine or something. But there's a surprisingly long list of offenses, things like impaired driving or assault with a weapon that might be a firearm, but it could also be a TV remote control or a shoe right and if you end up being convicted of those things, they simply constitute serious criminality and it makes you inadmissible to remain in Canada. So what that means is that somebody who might have been a permanent resident living in Canada for 70 years or more can find themselves deported without a hearing on the basis that they got convicted of, let's say, impaired driving or throwing a shoe at somebody, and so people should be really aware of that.
Michael Mulligan:If you're lingering in terms of making an application to become a Canadian citizen, now, this particular person and this was a case that was a judicial review of an immigration decision was another section of that Immigrant and Refugee Protection Act that also makes somebody inadmissible if you engage in what is defined in here as organized criminality, and that's a little different from what I've told you about. In terms of the serious criminality. It's a different section, section 37 of that act, and this one actually involves some form of a judgment call, whereas with the serious criminality, simply if you are convicted of one of those things an offense that you could receive 10 years or more, regardless of what sentence you impose, really that's it, you're out. The organized criminality section involves a judgment call being made by the immigration people federally about whether they believe on reasonable grounds that you are a member of an organization that's engaged in activity or a pattern of criminal activity planned or organized by a number of persons acting in concert. Now that's interesting, right, because first of all, it's sort of believing reasonable grounds pattern, right, and so you can imagine, you know, you don't even need to have been convicted, right? If they simply believe on reasonable grounds that you are in that category, then you are inadmissible. If you're not a Canadian citizen, and out you go. Now it does provide a saving provision that if you, basically if you're trafficked into Canada very virtually the only by virtue of the fact that you were entered Canada by persons involved in criminal activity like, let's say, somebody, some person pays money and a smuggler smuggles you into Canada, that doesn't get you into this category of organized criminality, but a whole lot of things could, and again, it's on the standard of belief, reasonable grounds to believe.
Michael Mulligan:And so this fellow the determination was made that there reasonable grounds to believe. And so this fellow the determination was made that there are reasonable grounds to believe that in this case he was engaged in a Ponzi scheme in Alabama between 2009 and 2013. And so, on that basis, he was ordered being inadmissible and ordered deported. And he's done various things to try to challenge that, including there's kind of this faint hope provision where you can write to the minister pleading for an exemption. He hasn't got a response to that. He tried applying for citizenship. That was refused and then he tried to judicially review like, have a judge in this case it's federal court, it's a federal immigration decision asking that there be a judicial review of that decision that he engaged in organized criminality. But that's a pretty limited review. It's just was that conclusion a reasonable one? Right A judge doesn't have just kind of wide roaming discretion to determine whether this law is good, bad or otherwise. And so what was just determined is no, the conclusion that there were reasonable grounds to believe that he'd engaged in this Ponzi scheme in Alabama. That was reasonable. And given that conclusion, he therefore is inadmissible.
Michael Mulligan:And so various arguments about being old or living here for 72 to 73 years, or health concerns or various other things.
Michael Mulligan:You know it's really, yeah, they thought about that, but out you go. And so it's just important for people to know you're here kind of on tender hooks if you're not a Canadian citizen. And so many of these provisions, I think, come as quite a surprise. Most people, I think, would be surprised to know. You know, of course nobody should throw shoes at people or nobody should impair driving is a very serious matter. But what do we want? To have a system which involves a automatic deportation for somebody who might have been here for 72 or 73 years, if any of those things happen, you know. Other things in here I think are uncontroversial If you're engaged in war crimes or trying to overthrow the government, fair enough. But it does seem to me there should be a little bit of discretion to take some of those things into account. But at least in terms of this fellow, out he goes. So that's how the Immigration Refugee Protection Act operates to make people inadmissible to stay here.
Adam Stirling:Very well, let's take our first break. Legally Speaking with Michael Mulligan from Mulligan Defence Lawyers will continue right after this. Legally speaking continues here on CFAX 1070 in the second hour of or excuse me, the second half of our second hour on a Thursday. Michael Mulligan with Mulligan Defense Lawyers. Michael, our next story. It says the plaintiff in a Victoria civil claim over an exploding stove will get to have a jury decide the case. What happened here?
Michael Mulligan:Nothing good, nothing good. So, first of all, with respect to jury trials, you have a constitutional right to a jury in a criminal case if you're facing five years or more in prison, so that's protected constitutionally. We do also have, as a common law right, the right to a jury trial in a civil case, and either the plaintiff or defendant can request a jury trial. Civil juries in BC have eight people on them rather than 12, so it's a smaller number. In my view, it's very important that we have juries as an available option, both civilly and criminally, because it brings community values to the justice system, both civil and criminal, and that's really important. It's also, I think, important in order to sort of maintain confidence in the system, and I think it's important because people who serve on juries and make decisions of course go back into the community and talk about what that process was. So I do think it's very important. But you don't have a constitutional right to a jury trial in a civil case. The other party can try to stop you from having one, and so this is a Victoria case, and the fact pattern is a very unfortunate one. It's a fact pattern that involves a fellow who's now almost 57. He was 50 at the time. He was a geological engineer, worked as a consultant in the forest industry, but unfortunately, back in 2017, this fellow and his wife purchased a Blue Star natural gas stovetop and oven range. Go check if you still have one of those. They were recalled.
Michael Mulligan:And shortly after this incident, in fact, and then on September 8th 2018, what happened is he was cooking, turned on the oven to heat it up to 325. He turned on the convection fan. That may have been the problem, and I should say that the stove manufacturer pleads that the instructions say don't turn on the convection fan when preheating. You know that's labeled clearly. Oh no, you can see what's labeled clearly. Oh no, you can see what's going to happen next. Yeah, you turn it on. It wasn't getting. There's a little light, you know, on your stove that shows when it's gotten hot enough, and the light wasn't going off, and so he tried turning the temperature down to see. You know, if you turn it down, sometimes the light will go off. You see how hot it is. It's now at 300. Well, it wasn't going off.
Michael Mulligan:And so he opened the door and he decided to stick his head in to see whether it was warm. And about a second after he stuck his head in, he saw a bright fireball that turned blue. His face and head were engulfed in flames and he was thrown three meters back. The theory of it it was the interesting theory is that the fan might have prevented the pilot light from lighting the gas natural gas lighting it and then the stove filled up to the point where there was so much, such a high concentration of natural gas it won't burn, if you have like. Not enough oxygen, just a whole bunch of natural gas that actually won't light on fire, interestingly. And then, when he opened the door, oxygen went in. Now you've got oxygen and a lot of natural gas and oxygen. Boom, now that's the very end.
Michael Mulligan:And so he requested a jury trial, and it's quite a trial. It sounds like they're expected to take 25 days to conduct this trial in Victoria 26 lay witnesses and 22 experts and 500 pages of expert reports. Wow, that's expensive. So that is expensive. And it also brings me to sort of when can you avoid having a jury trial?
Michael Mulligan:And the stove manufacturer is trying to prevent the jury trial in this case, I see, and you can avoid a jury trial if you have issues which require a prolonged examination of documents or accounts, or scientific or local investigation that cannot be made conveniently by a jury, or the issues are such an intricate or complex character that it wouldn't be appropriate for a jury. Those are the arguments that are made Now that required the judge in this case to sort of. Well, is it that right? And one of the central issues a grim smile on my face as I read this the expert for the man indicated that what happened here was an explosion and the defense, or part of the defense, from the stove manufacturer is that it wasn't an explosion, it was merely a flash fire.
Adam Stirling:I was actually going to mention that, with the percussive force required to knock a man back several meters, that's just unheard of.
Michael Mulligan:Anyway, you might be a great person for the jury, but I'm not an expert at these things, but still, it's just wow, it's shocking to hear this. So the one of the legal, one of the technical issues would be was this a flash fire or was this an explosion?
Adam Stirling:Yeah.
Michael Mulligan:And I guess that would impact on like how much pressure would have hit his head Exactly To try to. You know, was this a concussion or is this a psychological effect of being lit on fire, serious burns and all this? What was this? Now I also got to say this about all of those factors. You know, judges are not experts on flash fires or explosions either. They're just not right.
Michael Mulligan:Judges or lawyers have been around for a while and agreed to go and do that, and so you know, I think we should have confidence in the community members being able to deal with issues like that. You know, that's not something that's sort of beyond people's comprehension, right, whether it's convenient, whether there are a lot of documents. One thing I think we could do to improve that is, I think we could and should increase the amount that we are paying jurors. Yes, they are compensated to get twenty dollars a day for the first 10 days of the trial. That's not even getting you to park downtown these days, your head. If you could park for that, you're probably not getting coffee. And then, if you go on from 11 to 49 days, it's $60 per day. Maybe then you're getting coffee, but maybe not a fancy one at Starbucks, it better be a small. Now that I think we need to change, because one of the effects of having such low rates is people just some can't function. And so people say look, I can't pay my babysitter, I can't pay my rent, I can't park my car, I can't get gas right, and so you wind up with people trying to avoid jury service because it becomes economically impossible. So you wind up with juries comprised of people who are retired or have jobs which they are compensated for, and that's not everyone in the, that's not the whole community. So that, I think, is something we could fix.
Michael Mulligan:But in this particular case, analyzing all of those things, and the judge said look, yep, this is a yielder, lots of documents to look at here and there's other medical evidence about yielder. What caused the problems for this fellow? Ultimately he concluded that this was not a case that a jury would not be able to fairly conduct, and so the application by the stove manufacturer to stop the civil jury was unsuccessful. And you know, judge said look, I've got to cumulatively consider all those various things. And yes, it's a longer trial and yes, there are reports, and yes, there are disagreements about whether it was a fireball or an explosion, but jury can handle that, which seems to me just about right, and so the net result of that is that this fellow will get his trial, and he will get it with members of the community deciding it.
Michael Mulligan:You know whether that produces some kind of a resolution from the stove manufacturer, I'm not sure, but there it is. Also, check carefully, make sure you don't have that stove A few days after this, be it a fireball or explosion. They were recalled, and so if you have anything like that hanging around and that didn't occur don't stick your head in it. And whatever you do, make sure you read the fine print in the instruction manual about don't turn the fan on for preheating. That may have been the problem. So that's the latest on civil juries in.
Adam Stirling:Victoria. Five minutes and 20 seconds remain in our segment today. Item three harsh pre-trial detention conditions, it says, can be considered when deciding parole ineligibility for murder. How would that work? How would parole for murder be determined by the conditions in which one was held before trial?
Michael Mulligan:Yeah, the way that works and this is a case it's a court of appeal decision from the Yukon Court of Appeal, which is actually just the BC Court of Appeal judges with a different hat on. They don't have their own court of appeal, they use ours, or maybe, from their perspective, we're using theirs. But in any case, it's a decision from the court of appeal there. The way it works is that when you're convicted of second-degree murders this fellow was you're automatically sentenced to life in prison, but your parole ineligibility can be anywhere from 10 to 25 years. The judge has to decide that. And the particular issue here was should or can the trial judge take into account harsh conditions in pretrial custody to determine as a factor when determining how long the parole ineligibility should be? And again, eligibility for parole does not mean parole. It just means you may ask politely.
Michael Mulligan:You may well be told no yes um, now, the fact pattern in this case is a serious one. The fact pattern involves the accused, in a remote location, was trying to purchase crack cocaine from somebody who he intended to rob with a loaded shotgun. A person resisted, struggling, sued and accidentally the shotgun discharged through the passenger window and then the other person tried to take off. And then the fellow fired two more shots from the shotgun, which hit him. I must say the court of appeal here described it as a bullet entering his back. But one thing that does not come out of shotguns are bullets. It would be shot or maybe a slug, but be that as it may, he got hit and he died. The fellow then went and retrieved the shotgun shells, disposed of the body that was found by mushroom pickers and cleaned the truck. But despite those efforts, he ultimately was convicted.
Michael Mulligan:Now, what were the conditions here? Well, the conditions, the harsh conditions, flowed from what work this fellow had done for a number of years. He was 40 years of age, the fellow who was convicted, and he had no previous criminal history, which is not surprising given that for a number of years he worked at the Whitehorse Correctional Center, sounds like he was a jail guard and, as you might imagine, being held in custody in a jail where you were once a jail guard is not going to be a pleasant or safe experience, and so the result of that was that for a period of about 18 months, I guess, while he was in custody waiting for his trial, he wound up being in virtual solitary confinement, and it wasn't a result of misbehavior on his part when he was in custody. You know, sometimes a person will be put in solitary confinement because they're attacking or threatening people or something. There was none of that. He was put there because otherwise he would likely be killed by the other inmates, and so being in that kind of virtual isolation for a very long time has really negative implications for people, and the judge here accepted that, as a result of this 18 months in what amounted to segregation, it had adverse impacts on, for example, his mental health. Right, you just imagine what that's like if you're sitting in isolation, not talking to anyone, for more than a year and there's medical evidence, which the judge accepted, that it was harsh conditions and it did negatively impact his mental health.
Michael Mulligan:But the trial judge here and I should say it's also an interesting case because it was a case that occurred without a jury. Murder trials are with the jury unless both Crown and the defense agree not to have a jury, and so there was no jury here. That's also relevant to the parole ineligibility, because if there's a conviction of secondary murder, juries are actually asked to recommend what they think would be an appropriate parole ineligibility period. It's not binding, but they make a recommendation that a judge has to take into account when deciding what to do. So that didn't exist here because there was no jury.
Michael Mulligan:And so ultimately here the judge concluded that it was not appropriate to take into account the harsh conditions and so imposed a parole ineligibility period of 13 years. The Court of Appeal disagreed, they split 2-1. And the Court of Appeal of the Yukon, which is also our Court of appeal, concluded that no, it is appropriate to take into account all of those kinds of factors, including the impact of those harsh conditions, and so that's now the law in the Yukon and effectively in BC. And they determined that while the life sentence doesn't change any, taking that into account, it would be appropriate to set the parole ineligibility at 12 years rather than 13 years, which again doesn't mean he gets out then, it just means he can ask one year earlier, and so that's the latest from the Yukon Court of Appeal and that's how your harsh conditions can impact potentially on how long you might have to wait to ask for parole if you're convicted of second-degree murder.
Adam Stirling:Legally speaking on CFax 1070 with Michael Mulligan from Mulligan Defense Lawyers. Michael, pleasure as always. Thank you so much. Thanks so much. Always great to be here. All right, talk to you soon. Bye now.