Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Demons on Motorcycles: When Psychiatric Breaks Meet Civil Responsibility
What happens when someone experiencing a psychotic episode intentionally crashes into a motorcyclist they believe is a "demon"? This fascinating exploration of mental illness and legal liability takes us through a landmark BC case that transforms how we understand responsibility when reality breaks down.
The distinction between criminal and civil liability becomes crucial as we follow the story of a man with no prior psychiatric history who suffered a complete psychotic break in 2018. While criminal law might find him not responsible due to mental disorder, civil law focuses on compensation rather than punishment. The judge's nuanced approach reveals how liability extends beyond just the final moment of incapacity—examining the gradual deterioration that preceded the collision provides vital context for understanding accountability.
This case carries profound implications for anyone interested in mental health advocacy, legal rights, and public safety. The court's finding of both negligence and battery resulted in a substantial award to the injured voice actor while also creating complex insurance issues since intentional acts typically aren't covered by policies. Perhaps most strikingly, the vehicle owner—the driver's then-girlfriend—was also held liable despite her desperate attempts to prevent him from driving once she realized his condition.
We also delve into a separate but equally compelling case involving a Green Party deputy leader whose sentence for criminal contempt was reduced on appeal due to a misapplication of the "step-up principle." This illuminating example shows how judicial sentencing is constrained by legal principles that ensure proportionality and fairness rather than simply escalating punishments for repeated offences.
Whether you're a legal professional, mental health advocate, or simply curious about how our justice system navigates these complex intersections, this episode offers valuable insights into how responsibility, compensation, and accountability function when mental capacity is compromised. Share your thoughts on these rulings and join the conversation about where personal responsibility begins and ends.
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. Morning, Michael Mulligan, or afternoon I should say Michael Mulligan, force of habit. How are you doing this week?
Michael Mulligan:Hey, good afternoon. I'm doing great. Always good to be here.
Adam Stirling:A really interesting story off the top today because it deals with a phenomenon that you and I have discussed any number of times during recent segments, and that is the intersection that can happen with unlawful behavior that is motivated by a person who may be suffering from some sort of psychiatric disorder, and how the legal system deals with that in different situations. I'm reading here it says driver who believed a motorcyclist was a demon liable for accident. What happened?
Michael Mulligan:Well, it's a tragic case from 2018 in Vancouver and it's particularly interesting because it deals with the issue of how severe mental illness or episode interfaces with civil liability rather than criminal liability. Context right, we don't punish people if they're not criminally responsible as a result of a mental disorder, which involves an assessment of things, including whether they're able to, you know, understand the nature and quality of what they're doing or what they're doing was wrong. Right, because a criminal law is interested in punishing, you know, intentional wrongdoing, not, you know, accidents or people that think they're fighting off demons right Now, as we've talked about, being found not criminally responsible does not mean you go free. It usually means you're in a mental hospital, in a secure facility, until there's a determination made that you're not a danger to the public, which could be for the rest of your life, but that's criminal, and what we're dealing with here is civil. Back in the days before, we had no fault and no one's responsible for anything. Back in the days before we had no fault and no one's responsible for anything.
Michael Mulligan:The case involved a civil claim brought by a motorcycle rider who was intentionally run into on the Lions Gate Bridge, and it happened, as I said, in 2018, september. The motorcycle rider and a friend were out for a pleasant motorcycle ride in North Vancouver. They're coming across a bridge and, very unfortunately for them, behind them was this fellow who had no previous history of any psychiatric issues at all, which was important to the case fellow over a period of three days. As a result, it sounds like of sort of a combination of various stressors and a dangerous job and finding out about the death of a neighbor and a workplace injury and lack of sleep, various things. He had this complete break with reality where he had these paranoid delusions eventually, where he thought that there were demons that he needed to protect people from and he thought these two people on two motorcycles were demons that he needed to protect people from. And he thought these two people on two motorcycles were demons.
Michael Mulligan:And so he decided to ram his Audi not his Audi, actually, that's interesting too. It was his ex-girlfriend's Audi, now ex-girlfriend's Audi into the back of one of them, throwing one of the men off his motorcycle who went skidding along the road. It caused all kinds of it caused various things torn rotator cuff and sprained, wrinkle, wrist and ankle Described. You know, going along the sidewalk with belts flying off or sparks, flying off of a metal thing on his belt Awful, I must say. Very fortunate it wasn't worse, yeah, but that fellow wound up making a civil claim suing both this man, the driver of the Audi and the owner of the Audi the man's then-girlfriend.
Michael Mulligan:And there's provisions in the Insurance Motor Vehicle Act that make the owner of a vehicle liable when they allow other people to use it, which is also important to know. Yeah, now the claim involved claims for, you know, non-pecuniary, like pain and suffering, but also for lost future earnings, which is often a big thing. The man was described as a voice actor who does animated productions, commercials and video games. So you know, maybe he's the voice of Super Mario Brothers, who knows. But he alleged that his income went down as a result of the injuries that he suffered that night. Now here's why it's a really challenging problem to get your head around in terms of how does mental illness and this kind of a clear? Everyone agreed this man had this breakdown. He genuinely thought there were demons and flames coming out from under the bridge and he thought he was saving people.
Michael Mulligan:You know, earlier that day he found himself in an Ikea parking lot with an impulse to go up and try to help people he thought were in danger. So clearly the man had this complete breakdown. But the reason it's challenging from a civil liability perspective is well, civil liability is not concerned with punishing people and wrongdoing. It's concerned with compensation for loss. But the basis of the civil claim, really there are two elements to it. One was a claim in what's called negligence, and negligence involves there being a person who has a duty of care to somebody else. Like when you're driving your car, you've got a duty of care to be careful, so you don't like to somebody else. Like when you're driving your car, you've got a duty of care to be careful, so you don't like run into people. Well, at least you did, and so there's that. And then, if you establish that you have a duty of care, you have to show that the person was negligent or careless, right. And the reason that is challenging in this context is there are some circumstances in which, let's say, a person with no prior history is driving along and they suffer an aneurysm brain, aneurysm right and they lose control and they crash into somebody, injuring them. Well, there may be no negligence there, right, if the person had no reason to think they were going to have a brain aneurysm, just suddenly just hit them right and they lost control. Well, they didn't have any control over their actions, they weren't like sort of careless leading up to it, nothing, it just happened, right. And similarly the action was also framed in what's called battery, and battery is kind of the civil cousin of the criminal idea of assaulting somebody. Right, and here that was framed that way as well, because the man like it wasn't an accident, he like intentionally drove his car into the motorcycle thinking he was being driven by a demon. And so then the issue there is well, is that captured right, you know? What degree of you know mental capacity do you have to have at the time for that as well? So that's what the judge was struggling with in this just fascinating case. And, as the judge points out, the law about this is all over the map. The judge actually had to attach this is interesting, they had to attach an appendix outlining all the different ways this has been dealt with in different common law jurisdictions, different provinces in Canada, and some of the law is now quite old, and so the judge had to struggle with all of those concepts. Well, what do you do with this? Right?
Michael Mulligan:And ultimately, the approach the judge took to it is similar to an approach that can be taken in some cases involving things like heart attacks, where the heart attack causes the car accident. Right, because here's the argument. The argument made was look, you know, clearly at the time the man had no capacity to know that he had a duty of care to anyone. He was just kind of right in a completely different world. But the argument by the plaintiff was well, you shouldn't look at just like what happened in the hour or two before or the few minutes before, and the analogy there would be like, for example, with a heart attack that causes a car accident. You know, if somebody's driving along, no problem at all, and they just have a sudden massive heart attack, they lose control, they're probably not negligent. But let's say, on the other hand, you say to yourself, boy, you know, my chest really hurts, I've got a real pain there, boy, I think I'm in trouble. And you just say, well, I don't really want to get an ambulance, I'll just drive myself to the hospital. And then you in fact lose control driving there. Well, at that very last moment. Yeah, that might be out of your control or capacity right to do anything about.
Michael Mulligan:But the judge looked at here the fact that this man had some idea that things were going wrong over the past couple of days, like the previous couple of days, like he left work thinking he couldn't safely operate equipment and he seemed to kind of degrade over a couple of days, eventually getting into this completely psychotic state. A pretty good balancing is, the judge concluded. Look, even though he may have not had any capacity to do anything or recognize the standard of care at the time when he was so deep into this psychosis that he thought there were demons on motorcycles, he wasn't in that state for the whole period of time. He seemed to recognize that he had periods, while his memory as to what was going on over the preceding two or three days was spotty. There was like evidence from his girlfriend at the time that he seemed lucid and fine on the phone. Uh, you know that morning. But then, like shortly before he did this, he had stopped his car and phoned her and she was clearly very concerned that he had, you know, had lost touch with reality to the point where she phoned like nine one one thing, oh my God, and told him don't drive, pulled out and went and did this right.
Michael Mulligan:But the idea of the liability here and a similar approach might be taken to somebody who drinks a whole lot of alcohol, right, the idea that, hey, you're drinking, you're drinking, you're getting really drunk, you're getting really drunk and then you're blackout drunk when you hop in your car and go and hit somebody, right, you can also make. Well, I can appreciate at the time you just passed out in your car, but the analysis isn't your obligation or your duty of care extends beyond that last moment when you passed out. From all the alcohol you drank, right. And so that was the approach the judge applied here and found that, even though at that last minute, in the last few minutes, he didn't have that kind of capacity, there was still negligence which is much lower. Punishing him, we're just sorting out liability money really, and so that was sufficient. Also, interestingly, the judge found that the ex-girlfriend is also liable because it's her vehicle and she had allowed him to use the vehicle and, even though she got this final phone call from him, told him you know, my God, don't drive, don't go anywhere, and phoned 911 and called his brother and tried to stop him from driving before this happened. There's a section of the insurance motor vehicle or a motor vehicle like Section 86, that when a person acquires a motor vehicle with consent of the owner and he had, she'd let him use her Audi you become liable for accidents that happen with it and so, even though she tried to do things to intervene, she's also on the hook for it. And so at the end of the day it's a substantial judgment.
Michael Mulligan:The voice actor who was seriously hurt. He'd asked for $1.4 million. He didn't get that but the award was for $429,000. And there are going to be some interesting insurance issue coverage issues here, because, for example, your ICBC coverage again back at the time when we were responsible for our actions doesn't cover somebody who engages in battery, like you're not insured for intentionally ramming somebody with your car, not surprisingly, how do you insure that right? So there's going to be a really interesting issue here.
Michael Mulligan:The claim was allowed on both that battery and negligence. No doubt negligence would be covered by the insurance, but it may be, at the end of the day, this man who had the psychotic break and, interestingly, no issue since he went to treatment. He took medication no problem for the past six years. This was a one-time thing. By all accounts, he and his ex-girlfriend may wind up personally on the hook on the basis that the judge found there's also liability in battery, which isn't something covered by your insurance. So it's a fascinating case and that's how sort of mental health and so on can interface with not only criminal liability but civil liability. And that was the latest from the BC Supreme supreme court trying to sort out different laws all across the country and all around the world michael mulligan with mulligan defense lawyers.
Adam Stirling:Legally speaking will continue right after this legally speaking continues on cfax 1070 with michael mulligan, barrister solicitor, with mulligan defense lawyers. Michael up next it says the misapplication of the step-up principle results in a reduced jail sentence for contempt of court multiple times, and it's a matter that we've been following for years now.
Michael Mulligan:It feels like that's true, and so it's one of the cases that comes out of those flying squirrel protests where there were a whole bunch of people convicted of criminal contempt. Ultimately and the case is notable for several reasons it's a court of appeal decision dealing with a sentence imposed on a woman, ms Davidson, who is a public figure in the sense that she's a deputy leader of the Green Party and a candidate in the upcoming federal election in the Northwest Territories. And Ms Davidson, in this case, had a trial and was ultimately convicted of seven counts of criminal contempt for breaching court orders restricting the way in which people could protest to try to stop logging. And, as the trial judge and the Court of Appeal point out here, criminal contempt is an offense that they quote strikes at the heart of the rule of law, right. Offense that they quote strikes at the heart of the rule of law right. You don't have the rule of law. People just ignore laws that they don't like, even if they feel strongly about it, which, I must say, is it's rather ironic that somebody convicted of seven counts of criminal contempt is running for election. You wonder why bother if you're interested in participating in making laws, if your position appears to be just ignore them if you don't like them. That's a rather incongruent proposition, and so it's interesting, of course, that so far they're still having her continue in that role, although I suppose influenced by the fact that one of the co-leaders of the Green Party local candidate here, ms May, was also convicted of criminal contempt on other occasions, so maybe that tempers their view of it. But in any case, this woman is convicted of these seven counts of criminal contempt following a trial, and the Crown and Defence have different positions on sentencing at the time.
Michael Mulligan:The Crown's asking for, I think, 51 days plus a period of community work service and probation, and Defence counsel is asking for time served. The woman had spent 12 days in custody, I guess, waiting during her various arrests, I guess, and the judge in the case interestingly imposes more than what the Crown was asking for. The Crown wanted 51 days, the judge gives 60 days and the arguments on the appeal they were several, and the appeal was conducted on behalf of the woman by Mr Isset, former city councillor here, who's obviously doing a good job for his client. Lots of interesting legal arguments here, but it flows from a case NAHANE. It's a case that went to the Supreme Court of Canada, which stands for the proposition that where a judge is going to impose more like a longer sentence on what the Crown is asking for, a judge is required to give counsel an opportunity to make further submissions about that, right, okay, well, the Crown is asking for 51, I'm going to give 60,. What do you say about that Anything more? I should take into account, right, so he made that argument.
Michael Mulligan:The Court of Appeal found that didn't have merit here because the judge made clear in his interaction with Crown including about that other concept, that step-up principle that made clear that the judge had a concern that the sentence the Crown was asking for is not sufficient. So it wasn't a circumstance where Defence Council didn't have an opportunity to provide more information that might explain why the sentence would be appropriate, or the Crown to provide more information about why they're taking the position. They did. That happened and the problem that was identified was an issue with how the judge applied that thing. You mentioned the step-up principle.
Michael Mulligan:Now, the step-up principle is the way it's sometimes expressed is sort of the idea that you know if you keep getting convicted of the same thing, your sentence is going to go up, which probably doesn't need a principle to establish it. I'm sure anyone listening would think, yeah, that kind of how it's how it works, right? You don't usually get lesser and lesser sentences if you just keep doing the same thing, indeed. But. But the reason it was an issue here the Court of Appeal identified is how the judge expressed that in that discussion with the Crown.
Michael Mulligan:Remember, the Crown says we say 51 days, crown's like well, hold on a minute. Is that really, taking into account the repeated activity here and the way the judge expressed it is a way that sometimes you do hear it expressed in court but it's not quite right. It is a way that sometimes you do hear it expressed in court but it's not quite right. And what the judge expressed to Crown was the idea that he expressed it this way. The judge said surely she keeps going back, she keeps flaunting the orders of the court, she keeps disobeying them Each time, successively, she does that. Doesn't the step up principle oblige me? Doesn't it oblige me? Doesn't it suggest that for each successive breach I found there has to be an increase in the sanction? That's how the judge asked the question to Crown and this is also an example of why it's important that judges, you know everything in court is recorded.
Michael Mulligan:It's public right and judges have to give reasons for what they're doing. So you can, like this, look at it afterwards. Did they do it right? And that concept, the Court of Appeal pointed out, is the way the judge expressed it. The former now retired former chief judge or the chief justice of the province was wrong and the Court of Appeal pointed out, and there's previous authority for this. And the Court of Appeal pointed out, and there's previous authority for this, is that the concept, the step-up principle, does not require a judge to impose greater and greater sentences every time. They might do that, right, they're not obliged to. It's not a requirement, step-up principle. Not only does it not require a judge to increase sentences for each count, like each time somebody does something. It in fact is a way to express the idea that there has to be a measured increase, right, like you know, each time it shouldn't be. Well, you know, last time a person got, you know, two weeks for shoplifting, they shoplifted again and the judge shouldn't just say, okay, this time it's going to be three years in prison. They shoplift it again and the judge shouldn't just say, okay, this time it's going to be three years in prison, right, the idea properly expressed would be. A judge can, of course, take that into account. It might impose a greater sentence, but there should be consideration given to the sentence that occurred on the last occasion and there should be some sort of moderation or measure in terms of how much you're increasing it. And so the Court of Appeals expressed it's not an obligation to make it more, it is a suggestion or a requirement that judges moderate how much they're jumping up each time, which is a very different thing. And so the Court of Appeals found the judge was mistaken when he expressed that idea that he was obliged to impose more than the Crown was asking for on the basis of that principle. The judge just didn't properly understand that principle which, in fairness to the judge, that's a subtle difference, right, but it is a meaningful difference. And it's another example of how there are all kinds of restraints on what a judge is allowed to do. Right, judges aren't just unfettered kind of going off imposing whatever sentence they kind of feel like that day. This is an example of one of the kind of legal constraints, because it's not an emotional process, it's supposed to be a process of reason and logic and consistency and so on.
Michael Mulligan:The other thing that's worth pointing out and some people may not be aware of this is that we mentioned that, that idea about giving the lawyers a chance to respond or give additional information if the judge is going to do more than what one of them is asking for. Right, that seems fair. But the other thing people should know about is there's another Supreme Court-accounted case, anthony Cook, that actually restricts a judge's ability to depart when there's an agreement between the two lawyers, like if the defense and Crown make an agreement and say look, okay, my client will plead guilty to criminal contempt if you, crown, would agree to ask for, let's say, 45 days and I'll agree to ask for the same thing. Right, you have a deal. When that happens and it's made clear to the judge that this is a joint submission, both lawyers have agreed and that's the basis upon which the person pled guilty, in that case, a judge has very little discretion to depart from it. They can only be departing from what both lawyers are asking them to do.
Michael Mulligan:If imposing what's being asked for there would bring the administration of justice into disrepute, it's completely inappropriate. If people look at that and be well, that's just outrageous. I'm not doing that, right, then they can depart from it. But short of that very high bar, a judge must do what they're being told to do. They can't monkey with it right, and the reason for the law being that way is that otherwise no case would resolve, like everything would just go to trial.
Michael Mulligan:If it was just a topsy-turvy world where judges could do whatever they felt like, regardless of whether there was an agreement or not, you would not have cases resolving, and most criminal cases result by a guilty plea, and that's one of the reasons why. So that's another example of how judges can't just do whatever they want. In some cases, the lawyers have much more control over the sentence than the judge would. Now, this was a case where there wasn't a joint submission, so the judge did have authority to depart from it, didn't breach that obligation to give each side a chance to say more, because it made clear there was a problem, but made a mistake in terms of how he did it. The net result the sentence originally imposed was 60 days, reduced by 12 for the time already spent in jail, and the Court of Appeal reduced that to 51 days, what the Crown had originally asked for.
Adam Stirling:All right.
Michael Mulligan:And so found that she'll need to serve 39 more days. Also, interestingly said, she'll have to start serving that on April the 24th, which will be just before the upcoming federal election. So I guess if she wants to vote for herself she'll need to do that in an advanced poll. Also interestingly, she was given some time to start serving it. Often with these appeals a person has to turn themselves in before the appeal is heard and then would continue serving it if the jail sentence continues. So that's the latest from Ms Davison the sentence appeal and the step-up principle.
Adam Stirling:All right. I believe her counsel issued a press release either yesterday or the day before saying that they intend to appeal the matter to the Supreme Court of Canada and were hopeful to get bail as early as today.
Michael Mulligan:Well, you can always ask, but you don't get to go to the Supreme Court of Canada. Because you're keen, you have to ask permission no-transcript.
Adam Stirling:Cfax 1070.