Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Once a Student, Always a Bankrupt? The Supreme Court Weighs In
The boundaries between student life and financial freedom come under scrutiny in this fascinating examination of a groundbreaking Supreme Court of Canada decision. When does your status as a "student" truly end? According to Canada's highest court, returning to school—even part-time and self-funded—resets the seven-year countdown clock that protects government student loans from bankruptcy proceedings.
Through a split 6-3 decision, the court delves into the subtle nuances of legal language, including how the French version of Canadian law influenced their interpretation. The case presents a sobering reality for those hoping to discharge student debt through bankruptcy: even brief returns to education could extend the period during which these loans remain protected, regardless of how many years have passed since the original borrowing.
We also explore a high-profile Victoria murder case appeal that examines the legal distinction between different paths to first-degree murder charges. The court's analysis reveals how planning and deliberation carry a different standard of participation than murders committed during other serious offences like forcible confinement—a nuanced difference that upheld the conviction in this tragic case, where two escaped prisoners killed a man in his own home.
The conversation concludes with an examination of what legally constitutes a "firearm" under Canadian law, determining that a handgun tested without its original magazine still qualifies as a firearm if it can function with alternative components. This technical but significant ruling emphasizes a weapon's capability over its specific configuration at the time of seizure.
These cases collectively illuminate how judicial interpretation of seemingly straightforward legal language can profoundly impact real lives, whether determining the dischargeability of student debt, the severity of murder charges, or what constitutes a regulated weapon. Subscribe to hear more analyses of how the law affects everyday Canadians in unexpected ways.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment, joined as always by barrister and solicitor, with Mulligan Defence Lawyers. It's Michael Mulligan, legally speaking, here on CFAX 1070. Afternoon, michael, how are we doing? Hey, good afternoon, I'm doing great.
Michael Mulligan:Always good to be here Some really interesting stories on the agenda.
Adam Stirling:Today I'm reading a case from the Supreme Court of Canada to do with student loans and bankruptcy. That grapples with, among other things, the question do you stop being a student and, if so, when does that happen?
Michael Mulligan:Do we ever really stop being a student? Maybe not. So this is a really interesting case. It just came out this morning from the Supreme Court of Canada and it's a case that originated in British Columbia and the case involves how the Bankruptcy and Insolvency Act works. And I should say that in Canada bankruptcy is a federal jurisdiction. It's right there in the Constitution Act, even though most other sort of property-related things are provincial, and so that act the Bankruptcy and Insolvency Act, the idea behind it, is to allow people basically at some point Involvency Act the idea behind it is to allow people basically at some point if they get in so far over their head they're never going to be able to pay off their debts to kind of get a clean break. You get to start again, right. But we have some exceptions to that, and one of the interesting exceptions is an exception that prevents government student loans, government being important. I guess Student loans are private ones, aren't covered by this, but government student loans the presumptively going bankrupt doesn't wipe out a government student loan, unless it's. You've not been a student for seven years Now. The reason for that, or one of the policy reasons for that, might be, of course, you know, if somebody you wouldn't want, somebody, for example, you know, going to school for many years, becoming a I don't know medical doctor after many years of education, taking out huge student loans, and then, as soon as they finish university, with no assets and a giant student loan debt, just saying I'm bankrupt, and then having that all wiped away, you might say, well, that's not fair. You're going to have the benefit of that education for a very long time. And so the bankruptcy and insolvency act provides that if somebody has been a student within the past seven years, you don't. Your student government student loans don't get wiped out by a bankruptcy.
Michael Mulligan:Now sounds clear, but human affairs are, of course, complicated, and here's this fact pattern with the British Columbia connection. The person who entered into a consumer proposal under the Bankruptcy and Insolvency Act had taken a bachelor's degree between 1987 and 1994, got student loans for that and then immediately did a teaching diploma. Student loans for that. Okay, so far, so clear. Now a number of years went by with working and then the person decided to pursue a master's in education and did that between 2006 and 2009. And for that they took no student loans. Okay, they then entered into this consumer proposal in 2013 to go bankrupt.
Michael Mulligan:So here's the question it's been more than like well, more than seven years from the time this person took out the student loans to do their bachelor's degree and their teaching diploma, but they'd gone back to school, part-time, self-funded, to do this master's degree. Were they a student? Have they passed seven years? And the argument they made is they said well, you know, this should be analyzed from. You know different dates. And they argued well, you know, we're talking about student loans for this degree from back in you know the teaching diploma that ended in 1995. And so that's more than seven years from 2013. Why should the fact that they went back to do another degree mean that, once again, the student loans have become exempt from bankruptcy?
Michael Mulligan:Well, that's the issue that got to the Supreme Court of Canada and it involved a statutory interpretation of the wording there. And the Supreme Court of Canada split. It's an example of tough decisions. Right, the Supreme Court of Canada split 6-3, and three of the judges in dissent said well, you know that doesn't make any sense, that the fact this person went back to school to do another degree, which they paid for themselves and didn't borrow any more money, would then reset the time period. And they said well, it could lead to absurd results. What if somebody did like a degree and then 20 years passed and they still hadn't paid off their student loan for some reason, and then they went back to school for six months? Are they then captured by that provision? They said that's legislation. They pointed out that the legislation uses the term student and loan singular, which doesn't seem to comport with the idea there could be different time periods for different student endeavors.
Michael Mulligan:And the other interesting thing that the Supreme Court of Canada the majority pointed to is the fact that in Canada federal laws are all both in English and French and they are equally authoritative. But language is really subtle, particularly legal analysis, and in this case the French version. The language was more restrictive than the English language. Like in a related provision, the French version said the borrower it translated to English must not have been a student under the applicable law for the preceding number of years. And so they said well, that's equally authoritative and that's more restrictive. And so the majority determined that no, if you have become a student, whether full or part-time and that's the other interesting thing this person who went bankrupt they had been working and they did their master's degree, part-time, paying for it themselves, but that's still student because it's full or part-time.
Michael Mulligan:And so the effect of this is that, even though it was well past seven years the time of the bankruptcy from the time the money was borrowed, the fact that the person went back to school to do the master's degree meant that the student loans were exempt from the bankruptcy proceeding and they will have to be repaid. And so, while we all may be students for a very long time, that may have a real impact. If somebody finds themselves in a position where they can't pay their debts presumptively, those student loans are not going to be covered by the bankruptcy proceeding, and so going back to school has a real impact, even if that's for a short time, and even if you don't borrow any more money. It means that those other loans are going to stick with you, according to the six judges from the Supreme Court of Canada. So that's the latest this morning from the Supreme Court of Canada on how bankruptcy is affected by being a student.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers, legally speaking, will continue right after this. Back on the air here at CFAX 1070 Michael Mulligan with Mulligan Defense Lawyers, legally speaking. As we continue, what's next on our agenda today? Michael?
Michael Mulligan:Next on our agenda is a notorious Victoria case and an appeal decision on it. It's one that I think many listeners would be familiar with. This tragic case from 2019, where those two men broke out of William Head Penitentiary and it eventually resulted in the murder of a man in his own home. So just a terrible local case. Just to review some of those facts which will be important to this appeal decision. The case involved the man's house being broken into. Case involved the man's house being broken into, and then it would appear that the people were in the home for an extended period of time, throughout the day, and there was evidence in the home of things, including a Google search for one of their names on the person's computer while they were at work and looking at local news reports to, I guess, see whether there was information about the escape on there. News reports to, I guess, see whether there was information about the escape on there. And then, eventually, in the home, various things, along with the deceased, who was found with his hands duct taped. Various things were found, including two axe handles, two pairs of bloody gloves, two walkie talkies and various other things, and the trial proceeded, with one of the men choosing to plead guilty after the trial has started, but the other man continuing with the trial that man, as it happens, was one of them, who was when he was arrested a day later was found wearing the ball cap of the deceased and carrying his backpack.
Michael Mulligan:Not good, no-transcript, no-transcript. You know, make sure you apply the law as I describe it to you, because if I'm mistaken, if I'm wrong and you do what I'm saying, that could be fixed on an appeal, but if you do something else, we can't fix that. That's one of the things that judges will tell juries. Right, listen to me on the law, right. And so appeals are often an analysis of what did the judge tell the jury to do and was it correct? Did they give them proper instructions? Because we assume that juries are going to do what they're told and follow the laws the judge laid out for them. And the other interesting element of this some people may not know about, but most people would be familiar with the idea that in a criminal case, a jury has to be unanimous. They all have to agree on the verdict guilty or not guilty but juries don't have to agree on how they reach their decisions and Crown counsel are permitted to have more than one theory of the case, which is also really interesting.
Adam Stirling:Yeah.
Michael Mulligan:And here the crown had more than one theory. Uh, the, the crown's first central theory was the idea that these two men committed the murder together. Right, um, and they, they were both participants in the killing. Looking at things like, hey, there are two ax handles and there are two pairs of bloody gloves and all all of this, right, and they were both participants in the killing. Looking at things like, hey, there are two axe handles and there are two pairs of bloody gloves and all of this, right, and you were. And the plan and their theory was that they did it together. And their theory, their primary theory, was that the it was first degree murder because it was planned and deliberate.
Michael Mulligan:Most people are familiar with that idea too. Right, that's one of that's the most common way that a murder can go from second degree to first degree the idea that it's planned and deliberate. We view that as more serious rather than something kind of happening on the quick. Right. It's the most serious thing If you've sat around, schemed about it all day, got your axe heads ready, got your gloves ready and then did something right. That's more serious than just, you know, something snapped. So that was the first theory that the Crown argued to the jury and the judge instructed them on that.
Michael Mulligan:But the Crown had a backup theory. Their second theory was a first-degree murder was okay. Well, if you're not persuaded beyond a reasonable doubt that these two people had planned together the murder They've both done that Then there's another way, or there's more than one way, you can get to first degree murder. And one of the other ways you can a murder can become first degree rather than second is if the murder is caused by somebody, well, they are also committing another offense. And there's a list of other offenses. They include things like hijacking an aircraft, sexual assault or the one relevant here, kidnapping or forcible confinement and the reason that and that's a different way a murder can become first degree rather than second.
Michael Mulligan:And the Crown's alternate theory was well, even if you are not satisfied that this man was involved in planning and deliberation, because there was some evidence that was less strong against him, like, for example, the man who pled guilty. He was the person whose name was being searched on the computer that day, right, and his fingerprints were found in the house. The other man no fingerprints in the house and no indication. He was searched on the computer that day, right, and his fingerprints were found in the house. The other man no fingerprints in the house and no indication he was searching on the computer. So one of the arguments made by the defense was well, maybe he'd been outside, maybe he'd been somewhere else in the walkie-talkie, you know, maybe he'd only showed up there after the murder had occurred, right? But the Crown's alternative theory for this man was it's still first-degree murder on the basis that the man had been, it would appear, clearly forcibly confined. He's duct-taped, right.
Adam Stirling:Yes.
Michael Mulligan:And so the Crown's argument was well, look, even if you're not persuaded that the man who continued on trial was involved in planning and deliberation, you know, maybe he'd been outside, maybe he was on the walkie-talkie who knows on the walkie-talkie, who knows? You know, if you're not persuaded by our argument that he likely did it because there are two of these things in there, right then you should still convict him of first-degree murder on the basis that he caused the man's death while there was a forcible confinement going on, and so the judge provided that to the jury as an alternative. Well, if you're not satisfied it was planning and deliberation by this man as well, then you need to go on to analyze that theory of it. Now here's the interesting thing about that different way you can get to first-degree murder. When you that subsection that deals with how you can get to first degree murder while committing other offenses uses the language that the death is caused by that person while committing or attempting to commit an offense, Supreme Court of Canada has said well, caused by that person, because that language is used there. That means something more than just like some minor contributing factor. Right, the parliament has seen fit to use the language caused by the person, right? So the crown for that alternative theory of well, this was, well, there's enforceable confinement requires proof of more than just well, you were kind of standing by the door or something. You know what I mean. You have to be. You caused it in a significant way, and that's sometimes referred to as like sort of an enhanced degree of participation being required.
Michael Mulligan:And the argument made by the defense was well, that's all fine and well, that needing to be caused by that person should be applied to that the usual way that you would get to first degree murder planning and deliberation. And so the argument made by the defense on the appeal was that same kind of higher degree of participation right, the sort of really caused by that person, not just some minor contributing factor to what happened, should have been what the jury was told to do when deciding whether there was first-degree rather than second-degree murder committed here on the basis of planning and deliberation. And it was a novel argument, I should say, as the Court of Appeal pointed out, there's no prior case that's decided that. And so the Court of Appeal went on to analyze the sort of principles why is it that we have that sort of higher degree of participation and they analyzed it in contrast with and how that fits in with other things like the idea of a person being a party to an offense generally. And what is the why was that interpreted that way?
Michael Mulligan:And ultimately the Court of Appeal found that, even though the judge did not tell the jury that for planning and deliberation there has to be, you know, caused by this sort of higher degree of participation, the Court of Appeal found that was quite proper.
Michael Mulligan:And because those two sections right one is subsection three of section 231, the other is subsection five of section 231, only in that second one, the one that makes it first degree if you cause the death in the course of committing those other offenses, only in that occasion has Parliament used that term caused by the person. And so for that reason there is no necessity that there be sort of an enhanced degree of participation that would apply to the idea of planning and deliberation. And so, while it was a novel argument and that was really the only focus of the appeal, that was sort of a narrow focus on that narrow legal issue about how the judge instructed the jury that that wasn't enough to cause there to need to be a new trial and that the instructions given by the judge were correct, because those two different ways you can get to first degree murder, one has that higher provision and the other doesn't, and so that's why there will be no new trial in that local case, the tragic case of this man who was murdered in his own home.
Adam Stirling:All right, we've got 90 seconds remaining. How shall we spend them?
Michael Mulligan:Sure. Final one's an interesting brief decision, also in BC, out of BC, that deals with the actually relies on a B case. It's another Supreme Court of Canada judgment that deals with the issue of what is a firearm, what is necessary for a thing to be a firearm under the criminal code? The fact pattern is car was stopped, gun is found in the vehicle. It's a handgun. The handgun at the time had a magazine in it and ammunition.
Michael Mulligan:The police, for reasons unexplained, didn't send off the magazine or ammunition to be tested. They only sent the handgun off to be tested. So the lab gets the handgun and they test it using their own magazine and ammunition. It works.
Michael Mulligan:But at the trial the expert from the lab about whether this was a firearm expert from the lab about whether this was a firearm says that look, this particular handgun has a safety feature that makes it extremely difficult to fire if you don't have a magazine inserted into it.
Michael Mulligan:And so the trial judge acquitted and said well, I'm just not satisfied, this thing is a firearm because of the definition of what that is in terms of the device being able to operate and fire. But on appeal, and then eventually to the Supreme Court of Canada, they concluded that wasn't the correct approach, bearing in mind that there was some other evidence about the fact that this thing could function, or being adapted to function, readily, including the fact that the man, when he was arrested, made a comment about having previously used the firearm at a gun range, and so that was some indication that the thing worked, even without having tested the magazine, and given the fact that the way that definition of firearms works in the criminal code, the fact that it was able to work with a magazine from the testing facility was enough, and that did meet the definition of what a firearm is. So that's the latest from the Supreme Court of Canada on what a firearm is, even if they don't test the thing with the actual magazine or the ammunition that it was found with.
Adam Stirling:Michael Mulligan, with Legally Speaking during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here.