Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
From Warrants to Wheelchairs: Legal Solutions for Those Who Need Them Most
Navigating mental health crises poses profound challenges for families watching loved ones deteriorate without effective intervention options. This episode sheds light on a powerful yet underutilized legal tool - Section 28 of BC's Mental Health Act, which allows family members and concerned individuals to apply directly for a "warrant of apprehension" when someone exhibits dangerous mental health symptoms.
A recent Colwood court judgment outlines exactly how this process works, revealing that applications have increased significantly recently. The warrant enables initial 48-hour detention for proper assessment when someone displays behaviour indicating they may harm themselves or others. We dissect the legal criteria judges consider: reasonable belief in mental disorder, need for treatment, purpose of protection, and inability to proceed voluntarily. This mechanism empowers families who previously felt helpless, though its effectiveness ultimately depends on available treatment facilities and mental health resources.
We also examine two significant Court of Appeal decisions with far-reaching implications. First, a dangerous offender designation was upheld for an individual with decades of sexual offending against young boys, illustrating how the justice system handles those deemed to present an unmanageable risk to society. Second, a class action lawsuit against WestJet regarding passengers with disabilities who require multiple seats can proceed despite jurisdictional questions between federal transportation regulations and provincial discrimination laws. This fascinating exploration of "paramountcy" shows how courts attempt to harmonize seemingly conflicting legislation rather than automatically favouring federal authority. Have you encountered situations where knowledge of these legal mechanisms might have helped someone you know? We'd appreciate hearing your experiences.
Follow this link for a transcript of the show and links to the cases discussed.
It's Legally Speaking joined by Michael Mulligan, Barrister and Solicitor, with Mulligan Defence Lawyers. Afternoon Michael Pleasure, as always.
Michael Mulligan:Hey, good afternoon. How are you doing?
Adam Stirling:I'm doing well. I'm glad I could hear you there. I'm still sort of off-put when I bring you on the line. It used to bring this little slight sound and I don't have that in our new system, so I'm glad you're with us today.
Michael Mulligan:We're just getting over the lack of the downtown crackle.
Adam Stirling:We are, we are. Maybe that was downtown, maybe it was just something in the air. There are actually a number of very interesting issues on our agenda to discuss this week. I know one that I'm sure you've been overhearing the conversations we've been having, of course, after the horrific incident that took place over the weekend. There is a story I'm reading, number one here. It's how a family member or anyone else can apply for what's known as a warrant of apprehension pursuant to the Mental Health Act.
Michael Mulligan:Walk us through that? I certainly will, and I just want to make a couple of preliminary comments about a related issue. We just heard a discussion in the House about comments from Premier Eby about his views of the case arising out of the Lupa Lupa festival.
Adam Stirling:Yes.
Michael Mulligan:And there's discussion about sort of Premier expressing his view about what should happen in the outcome. Premier Eby should be very careful about what he's doing if he wishes that case to proceed properly to trial, and the reason for that it's a constitutional one. The idea of not having political interference and public comments from Premier or others about the outcome of a criminal case is not simply a good idea and it is a good idea not to be publicly commenting on what you wish the outcome of the case to be when you're the Premier. But we also have in Canada a constitutional protection and in particular Section 11D of the Charter, and that section is this Proceedings in a criminal and penal matter is the heading. A person is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. Now, one of the things wrapped up in that in terms of kind of comments made by the premier is that if you have the sort of interference with the prospect of a fair trial because the case presumably would be a jury trial at the end of the day and if you have the premier or attorney general or other officials of that sort expressing publicly and repeatedly their comments about the person's guilt or what the outcome should be, you run the risk of preventing the sort of fair and independent and impartial hearing that is required, and in the most serious of cases, the result of that could be there won't be a trial. Right A judge isn't going to permit there to be a trial, which is unfair. And if you have the premier, for political reasons, expressing views about the proper outcome of the case and what ought to happen, the risk is you interfere with that and you prevent the very thing that you want to happen. And so I would urge Mr Eby to get some careful legal advice before he continues to comment publicly about what he thinks the outcome of that case should be, because he is, I think, getting wading into very dangerous territory repeatedly and publicly expressing his opinion about what ought to happen and what the result should be, which is not going to be covered up by sort of sophistry here and so on. Eventually, you're going to have, potentially, a judge determining whether that constitutional right has been breached, which could interfere with the prosecution. So he should be very careful about what he's doing, because it's not appropriate to have the premier expressing his opinion about the outcome of an ongoing serious criminal case. The way he's doing, he runs the risk of preventing that from happening, so that would be my preliminary advice to him. Interesting.
Michael Mulligan:Now getting to the case that we're talking about here, this is a really interesting decision and it relates both to that tragic incident potentially and generally in terms of how the mental health system operates in BC. There's been some talk about whether there ought to be changes to that system or improvements made to the legislation. But the Mental Health Act has a provision in it that is rarely used and I think it is very important that people be aware of it. And there was a brand new decision from Colwood here. The judgment was on April the 11th, and it's a detailed discussion about the use of the provision in the existing Mental Health Act under Section 28 that permits a family member or, frankly, anyone, to apply for a warrant of apprehension in order to have somebody apprehended under the Mental Health Act and held for a period of, initially, 48 hours to determine whether there should be further involuntary treatment provided to them. And the reason this is interesting and important and people should know about it is it's a separate thing from the powers that the police have right To apprehend somebody under the act. This is a section which, for example, a concerned family member could use, right If they thought that that was necessary, or somebody else in the community, and so the process essentially involves making an application to a provincial court judge for this kind of a warrant, that warrant of apprehension, and the provincial court judge where there is that kind of an application has various things they need to consider when determining whether to issue the warrant.
Michael Mulligan:And the judge in this case commented that while these in the past these kinds of applications have been rare, that the judge hearing this application has heard six of them since the fall of 2024. Has heard six of them since the fall of 2024. And so there's some indication that people may be getting the message. There is an alternative here If somebody has, like a family member, a child or somebody else who's struggling with mental health challenges and they're not getting any assistance with it. So the first part of the judge needs to be satisfied of and this is an interesting thing given the nature of the application they first of all need to be satisfied that the person to whom the warrant of apprehension is sought is a person with a mental disorder. Now, the reason that's a little complicated, of course, is the judge isn't a doctor, right?
Adam Stirling:No.
Michael Mulligan:And typically these applications are made ex parte, the person's not there right.
Michael Mulligan:Yeah, are made ex parte. The person's not there, right. And so the judge in this case pointed out that there isn't going to be, in some cases, a diagnosis this particular decision that occurred on April the 11th. The only thing this person had been diagnosed with, I think, was attention deficit disorder, which is not something you're going to wind up voluntarily in the mental health system for. But, as the judge pointed out, the issue to be determined is not a diagnosis. It doesn't require the judge to determine if there is a mental illness there. They need to determine whether there is a reasonable basis to believe that so and so in this particular case, it involved a person who seemed to be deteriorating and was doing various unusual things. She believed that she had gotten into a telepathic relationship with somebody on TikTok. She believed that Prime Minister Trudeau had murdered her non-existent brother. She'd stopped eating and sleeping regularly. She thought her grandmother was trying to poison her with laundry detergent, and then she was doing other odd things, like she ran out of the house and, with her child, wound up sleeping in the subzero temperature next to a neighbor's driveway, and then, when the ambulance was called to show up there to do a check on her, she fled barefoot in the snow, without a jacket. Show up there and do a check on her. She fled barefoot in the snow without a jacket, right.
Michael Mulligan:And so on that fact pattern, the judge didn't need to make a you know diagnosis of does this person have a mental illness and what is the mental illness? That it is enough that the judge was satisfied on that basis that the person likely had a reasonable basis to believe the person had a mental illness that would seriously impair their ability to react appropriately to the environment, associate with others and so on. And so that's the way that was analyzed. That's the first criteria. Then the judge has to be satisfied that they require treatment through like a mental health facility, right. So on that fact pattern, yes, the person seems to require treatment. And then the next criteria. The third one is do they require care or supervision for one of four possible purposes? So the first is to prevent the person's substantial mental deterioration. Right To prevent a person's substantial physical deterioration or these two person substantial physical deterioration or these two for the purpose of protecting the person or for protecting others, right. And so in this case the judge was concluding that there's an evidentiary basis there to ensure that you know, for example, the person's child is protected, that they're protected, right, they're running around outside without shoes, on in the snow, sleeping outside. That's obviously not wise, and so the judge had no problem being satisfied of that.
Michael Mulligan:There also needs to be an assessment about whether the person cannot be suitably assessed as a voluntary patient, right, if somebody's saying, hey, I'm going to the hospital now to get help, well, they don't need a warrant for them. But, like in this case, the person was running away from the attendants trying to assess them. Okay, that doesn't seem to be so. And then whether this can be done without unreasonable delay. And so the judge went through all of that and concluded that, indeed, it met that criteria for a warrant of this sort under Section 28. And the result will be there'll be a warrant for their arrest, and they would be then taken into custody and taken to a facility where they can be properly diagnosed to determine whether they need to be committed for involuntary treatment. And so this is something that people should know about. It's something that they can initiate on their own. It would be helpful to have the help of a lawyer doing it, but it may be pretty important, right? You can imagine if, for example, you were a parent watching your child. You know display actions like was described in this case. It provides an outlet so that people would be able to take some control of that, go to court and have a decision made and then potentially do an assessment and get help.
Michael Mulligan:Now I should say it's important to know about. It exists right now, it can be used right now, but all of these things, of course, are all dependent on there in fact being a place for there to be actual treatment beyond some initial assessment. Right, and if you have a circumstance where there's just nowhere for the person to go and they're just released back into the community with the hopes that, you know, somehow people will check on them or do something, that may not solve all problems. So really at the core of all of this is the need to have facilities where actual treatment can occur. Right Orders and warrants and changing the law and amending the act and all of that really have no particular impact unless there's a meaningful place and resources for people to actually get assistance. And so you know, I don't think we do need too much in terms of inquiry or consideration to realize that if you want to provide help for people with mental health challenges, you need to have resources to do it.
Michael Mulligan:It's not really in most cases, a legal problem, right? But you know this demonstrates we have right now tools that allow for this sort of intervention. It's a good tool, but you know, the tool gets you legal tool gets you nowhere unless there's actually a bed and a doctor and a nurse and various people to help. And so, anyways, it's a very interesting case. It sets out in detail what needs to happen, the various steps and what a judge needs to consider, and it looks like at least some people are discovering that this is an available option. So I hope listeners keep that in mind and let other friends and family know that there is a scheme in place that they can avail themselves of. If they have a family member or friend or somebody who appears to be suffering from mental illness and is deteriorating, is at risk to themselves or others, there's something they can do about it. This is it, and from there it's just a matter of whether there will be sufficient public resources to provide whatever help is diagnosed by the doctors.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers, legally speaking, will continue right after this. We're back on the air here at CFAX 1070, legally Speaking with Michael Mulligan from Mulligan Defense Lawyers. Michael up next it says a dangerous offender designation upheld on appeal for a characterization that I don't even think I've ever said out loud before. What's happening here.
Michael Mulligan:So maybe we'll start with that, because it is a term people may be unfamiliar with.
Michael Mulligan:And so it is a fellow who is described by the trial judge as an entrenched, prolific homosexual hebephile. And a hebephile is distinct from a pedophile in the sense that they have a sexual attraction to children between the ages of like 11 and 14, early adolescence, and so you can tell from that description. It is astoundingly grim, and the case involved a appeal to the court of appeal about a designation of this person as a dangerous offender, and we've talked about that in passing before, the concept of somebody who is designated as a dangerous offender, which is something that can happen when you have a determination. Ultimately that there I mean, as the judge said, in this case there was no reasonable possibility that the appellant would make sufficient progress within a fixed sentence to take advantage of supervision mechanisms to provide for his release in order to control his risk in the community. And so what do you do with somebody who has demonstrated themselves to be just incorrigible, essentially in terms of their criminal conduct, and that kind of a danger, essentially in terms of their criminal conduct and that kind of a danger? And this fellow was described as somebody who had this long pattern of sexual offending. It started in 1978. He was convicted on a total of sexually assaulting nine young boys between the ages of 12 and 16. And he was described initially in his offending as starting out with using force and fear and then became eventually later offending more sophisticated, progressed to targeting vulnerable boys, lure them into spending time grooming them and providing drugs and so forth to them, and that's what occurred through the predicate offense that led to the application for this dangerous offender designation them. And that's what occurred in the sort of the predicate offense that led to the application for this dangerous offender designation.
Michael Mulligan:This man had, in violation of a recognizance that prohibited him from having contact with children and having served, not long before this, a 10-year prison sentence for similar conduct, engaged in this grooming behavior with another young boy, lied to others, telling, for example, the complainant's father that he was an outreach worker, and then used that as a mechanism for his offending. And so, given all of that background, the trial judge and ultimately the Court of Appeal, paid attention to, for example, opinion from a psychiatrist, which is one of the monitoring that this fellow would be unmanageable, essentially in terms of his risk in the community. And given that determination, the judge rejected what was a defense submission on sentencing. The defense suggested a period of 16 years in prison, such that he would be 78 years of age when he was released. Years in prison such that he would be 78 years of age when he was released. The judge found that even that, combined with a maximum 10 years of intensive supervision, would be insufficient to protect the public, despite the fact that there was expert evidence that the dangerousness of somebody like this diminishes with age.
Michael Mulligan:And so, given all of that, both at the original sentencing and now in the appeal decision that was just released, the determination was that this man was properly designated as a dangerous offender, and when somebody is designated in that way, what they wind up with is a sentence basically forever, and the person is not to be released unless the parole board was to determine that he didn't pose a risk to the community.
Michael Mulligan:And, given this background, the likely answer to that is that will never occur, and so it is certainly a very grim case, but I thought it was worth mentioning, in terms of both that diagnosis and also just a description of you know what it is we do and on what basis, when you've got somebody who is just incurably dangerous, and the systemic response to that is to impose a sentence whereby the person will never be released, even if the sentence for the particular offense, while serious, might not have warranted you know, 16 years might have been an appropriate sentence for the particular crime.
Michael Mulligan:When you have somebody like this, where there's just determination made that there's no basis to believe that after any period of time the public could be safe and there wouldn't be other serious offending of this sort, this is the result and that's how the justice system deals with it. So, yes, people should be aware of that. When you do have people of this sort and happily they're rare the systemic response is that we just don't let them out. And so that's the latest from the Court of Appeal on the dangerous offender review.
Adam Stirling:You and I have one minute 45 seconds remaining.
Michael Mulligan:Okay, final case. It's a case which is an appeal to the Court of Appeal over the certification of a class action against WestJet, and it involves an interesting issue of federal paramountcy. And what's going on here is that the claim is being brought by people with disabilities that require more than one seat to fly on an airplane, like somebody who has a particular type of wheelchair or something. They need more space. And there was a decision made a few years ago, in 2008, by the Canada Transportation Agency that said for domestic flights, airlines are only permitted to charge a fee per passenger, not per seat. But that decision by the Transportation Agency federal in Canada only applied to domestic flights, not international ones, does only apply to domestic flights, not international ones, and so WestJet at least charges if a person needs two seats, they have to pay for two seats, right? And the claim is being brought in part on alleged breach of provincial legislation, and one of the arguments made by WestJet is that, well, hold on a minute. You know airline regulation, including international travel, is something handled by the federal government under the Canada Transportation Agency, so the BC Supreme Court and provincial legislation should have nothing to do with that. And they referred to that interesting concept of the concept of paramountcy. And in Canada, of course, we have a federal system. We've got laws that are federal and provincial. And what do you do when sometimes things have sort of a dual aspect to it? Like you might have general laws in BC about disability discrimination, but you've got federally laws surrounding airplanes flying right, and so the argument is well, the provincial stuff should have nothing to do with it. This should be just dealt with under that federal legislation.
Michael Mulligan:What the Court of Appeal pointed out is that that concept of paramountcy it's real, it exists, and where there is a conflict between federal and provincial legislation, the federal legislation wins right. But when you're applying it there should be an attempt to harmoniously interpret the two different pieces of legislation in a way that doesn't make them incompatible. And it's a high burden to show that the federal legislation would be sort of made inoperable by what the province has done. And so, even though that is a concept, it does exist and the federal legislation takes paramount see when they can't be reconciled. The conclusion was it's not clear and obvious that you cannot reconcile the federal legislation with provincial legislation dealing with things like discrimination and disabilities. So the net result even though paramountcy exists, it doesn't prevent the claim here, and the claim by people that need two seats because they're in a wheelchair for international flights will be allowed to continue. That's the latest from the Court of Appeal.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, Legally speaking during the second half of our second hour every Thursday. Thank you so much. Pleasure as always.
Michael Mulligan:Thanks so much. Always great to be here.
Adam Stirling:All right, quick break News is next.