Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Judge Alone Murder and Partial Expropriation Compensation
The boundaries of judicial authority in Canada have been redrawn by a groundbreaking Supreme Court ruling that empowers judges to conduct murder trials without juries—even when prosecutors object. This remarkable case emerged from the early pandemic when COVID-19 made traditional jury trials nearly impossible. A defendant, unwilling to face further delay, requested a judge-alone trial, but prosecutors refused consent. The Supreme Court ultimately sided with the trial judge who proceeded anyway, establishing that protecting a defendant's right to timely justice can override prosecutorial preferences.
This ruling fundamentally reshapes our understanding of what falls within a prosecutor's untouchable "core discretion" versus what judges can override to protect Charter rights. Legal scholars are now watching closely to see how this precedent might extend to other prosecutorial decisions previously considered untouchable.
Property rights received equal attention through a fascinating case where a regional district built what the court bluntly called an "ugly dam" on part of a 157-acre ranch property in the Kootenays. Though only a small portion of land was taken, it transformed a pristine natural lake into an artificial-looking reservoir with an unsightly rocky dam. The court awarded the owner $340,080 in compensation, reinforcing the principle that the government must pay not just for land taken but for how the taking diminishes a property's overall market value.
Most controversial is the Nanaimo murder case, challenging Canada's mandatory 25-year parole ineligibility period for first-degree murder. A man who brutally killed someone with a baseball bat argued that, without the now-eliminated "faint hope clause" (which once allowed parole reviews after 15 years), this sentence constitutes cruel and unusual punishment. Though the judge found the elimination of this clause unconstitutional, the offender still received the full 25-year parole ineligibility due to the brutality of his crime.
These cases collectively demonstrate how our legal system constantly balances competing interests—public safety against individual rights, government needs against property ownership, and societal punishment against constitutional protections against cruelty.
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, with Legally Speaking on CFAX 1070. Good afternoon, michael. How are we doing?
Michael Mulligan:Hey, good afternoon. I'm doing great. Always good to be here.
Adam Stirling:Some interesting items on the agenda this week. I'm reading the first one. It says the Supreme Court of Canada finds that a trial judge had the authority to conduct a murder trial without a jury and without the consent of the Crown. What happened here?
Michael Mulligan:So there are some offenses in the criminal code that are required to be jury trials unless both the defense and the Crown agree to allow just a judge to try the case, and murder is one of those offenses, and the particular case came from June of 2020. So what was going on in June of 2020? Covid, no vaccine, early days of COVID, and so this man was facing a murder charge and he wished to not wait for there to be conditions where you could have a jury together. We did try various things. We in the system tried various things to try to make those possible, particularly in cases where people were in jail waiting for their trial. Things were tried like using two courtrooms and connecting up the two courtrooms by video and spreading the jurors out all over the courtroom with a big screen so they could watch what was going on next door. But, as you can probably imagine from that description, that was not easy, and in the early days, of course, people were still wiping down groceries and didn't know what was going on, right, and so in this case, the accused said look, I just want to trial the judge alone, let's get going. And Crown Counsel refused to consent to it, which I suppose is one of those things like perhaps bad judgment might make unfavorable law from the perspective of the person who's acting at least on its face, in a perhaps unreasonable way. And so the other thing to know is that there are some decisions in a criminal prosecution that are considered to be sort of core prosecutorial exercises of discretion, and those include things like whether the Crown is charging somebody at all, or what offense are they charging the person with, or you know other just core elements that the prosecution gets to decide that a judge is not permitted to interfere with unless it's determined to be what's called an abusive process, which is a pretty high threshold. Do you know what I mean? If somebody said, look, if it became clear that Crown was, I don't know, charging somebody with murder because they really didn't like them as a bad neighbor or something right, you say, well, hold on, that's just, we can interfere with that, but barring a very high standard, it's hands off. Crown gets to decide that.
Michael Mulligan:So here the trial proceeded with the judge alone, and the judge acquitted the man of murder convicting instead of manslaughter, and so the Crown appealed that decision and it got all the way to the Supreme Court of Canada, who just rendered their decision and they found that no, the judge was entitled to do what they did period of time, and here they weren't past the threshold. But there was a real chance that if they didn't get on with this thing the case could wind up being sold, it couldn't be prosecuted at all. And judges have, under Section 24.1 of the Charter, broad discretion to sort of, you know, come up with remedies to avoid those kinds of problems. And that's what the judge did here. He said look, I'm ordering this thing, go ahead, I don't care, it's just me. I don't care that the Crown is not consenting because otherwise the person is going to have a breach of their right to a trial within a reasonable period of time. Let's go.
Michael Mulligan:And so eventually the Supreme Court of Canada has now found that that choice, the choice whether to consent to allowing just a judge as opposed to judge and jury in a murder case, the Supreme Court of Canada has ruled that that's not part of that core jurisdiction of the Crown, where the judges can't interfere with it unless it's an abusive process.
Michael Mulligan:And indeed judges do have authority to overrule this kind of decision by the Crown in order to, in this case, avoid, for example, an unreasonable delay in the trial, and so it's both interesting on the particular narrow question about whether that decision is part of that core prosecutorial discretion, but it may also lead to other sort of choices like that being potentially renewable by judges without having to find that it's such a bad thing that it's an abusive process. So interesting both in terms of the particular case and the practical remedy granted by the judge, and interesting as well potentially in terms of how this might impact other sort of decisions that a judge might think need to be remedied. So very interesting case and I think perhaps one of the clearest examples I've seen lately of how potentially making a dubious, taking a dubious position causes everyone involved to have to carefully scrutinize it. And in this case it's made clear that that decision is not part of that core discretion and judges can interfere with it where necessary to avoid things like an unreasonable delay in the trial.
Adam Stirling:I'm reading this next one. It says compensation for a regional district building an ugly dam on a property. Am I reading that correctly?
Michael Mulligan:You're reading that right.
Michael Mulligan:And so this is an interesting case that has other, broader implications as well, and it was a hearing dealing with Section 40 of the Expropriation Act. And so there's authority for government to expropriate private property for, you know, public use right, that's sort of people would understand that right, if you need to put a road through or something a person doesn't want to sell their property, they can just take it. But they have to pay fair compensation for it and if there isn't an agreement, that can go to court, the judge will decide what that is. And that particular section I referred to, section 40 of the act that deals with that deals with the concept of partial takings, right, it's that they didn't take the whole property. This particular property was a large piece of property up in the Kootenays, so the 157 acres was described as like a ranch-type property that had quite an attractive lake on the property. It's also an interesting case because the judge included not only the written reasons but pictures of things like what on the property. It's also an interesting case because the judge included not only written reasons but pictures of things like what did the property look like before, right, which gives a lot of meaning to the decision, and that particular section dealing with partial takings deals with this concept of an injurious affection to the property. And so in this case it was the dam that was built and it turned what you know. It was only a small part of this 157-acre property, but a large part of the value of the property was this beautiful lake that was almost all within the property and it turned it from sort of a natural-looking lake to this thing, with a rather large rocky dam at the end of it that looks all man-made. And so the property owner had an expert report from an appraiser that said that the effect of that change was to reduce the property value by $340,080. That's pretty precise, but that was the result.
Michael Mulligan:And the idea there is that if you take just part of a property but it has the effect of reducing its market value, what you're entitled to is the change to the market value. So, like here's an example of, maybe in a smaller property. Let's say you own a house in the city of Victoria, right, and they decide they want to put in a bus stop size safe injection site on the corner of your property. And so they come and expropriate a hundred square meters corner of your property and install a safe injection outdoor site on the corner of your property and they say, well, we just want to pay you for the percentage of your land that we took there. To put that in right, indeed, one way to calculate. That might be well, what's the total value of your land that we took there? To put that in right, indeed, one way to calculate, that might be well, what's the total value of the land? And let's take the 10% they cut off to make the bus shelter size, safe injection outdoor site in the corner of your property. But that's not really going to capture the impact that just added your property value, right, it's not fair to just say we're going to give you 10% of the assessed value of your land. We've got to take into account what's the real impact that's having here, and so that's why the judge in this case took the time to put in the judgment things like well, here's a picture, here's what the views of the lake look like. Now, here's what it looks like, right, and that gives real meaning to the opinion of the appraiser who said no, this is seriously diminishing the opinion of the appraiser who said no, this is seriously diminishing the value of it.
Michael Mulligan:There was also an interesting thing that the regional district part of their repeated submission, according to the judge suggested that if you built a house in just the right location and had the windows facing just the right way, you would just see above where all the lake part, where the dam, rocks and everything were.
Michael Mulligan:It would all look just fine. But, as the judge, I think, wisely pointed out, it's unlikely somebody is going to never leave their home, so not noticing the large ugly dam that was constructed on their. What was their property? And so that's that concept of the injurious affection to your property. And so if you have even only a portion of it taken but it diminishes the value of the property you're entitled to not just a percentage of the property you're entitled to what impact that really have on what this property is worth? And so in this case the person succeeded. They got the $340,000 and various other costs and this and that, and that's what the regional district left have to pay them, because that's really the effect that you had on this previously beautiful property that now has a bunch of rocks and a dam built at the end of it, rather than what looked like a beautiful, natural, undisturbed lake.
Adam Stirling:We will take a quick break, legally speaking. We'll continue in just a moment here on CFAX 1070. Take a quick break, legally speaking. We'll continue in just a moment here on CFAX 1070. Don't attempt your day without us. This is Adam Sterling on CFAX 1070. We're back on the air here at CFAX 1070. As we continue our conversation, michael Mulligan with Mulligan Defense Lawyers, legally speaking on CFAX Up next, michael, it says the judge who took over the murder sentencing in a case that found mandatory 25-year parole ineligibility without the quote faint hope clause to be unconstitutional sentenced the offender to life without parole eligibility for 25 years. It says regardless as a result of facts in his case. How can that work?
Michael Mulligan:Boy. There's a lot wrapped up in that, isn't there? Yeah, this is a case out of Nanaimo, okay, and it's dealing with a charge of first-degree murder and it was a brutal murder. This man, who he played guilty to us promptly, he went over and murdered somebody by bludgeoning them to death in bed with a baseball bat, somebody he'd been dating for some short period of time so bad fact pattern. And he clearly did it and he took responsibility and pled guilty to it. But he challenged, or lawyers challenged, the imposition of the mandatory minimum sentence for first-degree murder, imposition of the mandatory minimum sentence for first-degree murder.
Michael Mulligan:And in Canada, murder, whether it's first or second degree, always carries a life sentence. You're never free to go. We do have a distinct and that was part of the compromise back in 1976 when we got rid of the death penalty. So we're not hanging people. But the compromise there was if you're guilty of murder, first or second degree, it's life in prison. And we do distinguish between first and second degree murder in terms of the parole ineligibility, and it's important to remember that eligibility doesn't mean you get parole, it just means you can ask Right, and many people who are convicted ask and never get it Right. So that's also an important thing to know. But for first degree you cannot even ask. For 25 years you may still be told no Right. For a second degree it could be anywhere between 10 and 25 years. The judge has to decide that Again, that's not when you get out, just when you can ask.
Michael Mulligan:And we did have for many years what was referred to as a faint hope provision, and the faint hope provision applied to people who were serving, like the first degree murder, 25 year parole ineligibility, and what it meant is that after 15 years you would be able to at least ask for consideration about reducing the ineligibility. So the way that worked is that a person would have to first of all ask for permission from the chief judge in a province right spirit court judge to first of all determine do they likely have a meaningful application to make right? Do they have some likelihood of success on that? If the judge said yes, that seems to have some merit based on how you behaved for the last 15 years in prison, then there would be a jury who would be constituted to decide whether the ineligibility should be reduced. And then, even if the jury says yes, you then have to persuade the parole board right, so it's not like you get out after 15 years.
Michael Mulligan:But in the past, when the Supreme Court of Canada has examined whether the life with no parole eligibility for 25 years was constitutionally permissible and they previously looked at that that fiend hope provision existed, and a number of years ago now, parliament made that Faint Hope clause inapplicable to any offence committed after 2011. And so what it means now is that if somebody gets no first-degree murder by this person 25 years, you can't apply under that Faint Hope provision. Now, one of the reasons why that Faint Hope provision exists or existed was to, for example, create an incentive for somebody to behave themselves in prison. Right, if there's a person who has, let's say, somebody who's, you know, 60 years old and they've got a 25-year parole ineligibility, there's mightily little disincentive for the person to, for example, attack a jail guard, right? You don't want to be working in that circumstance. So the idea was to give some hope. You might encourage better behavior. And, of course, you know things can change after a very long period of time, hard to predict.
Michael Mulligan:So what happened is the faint hope provision was made inapplicable to murders after that date and on that basis, this person who pled guilty to this murder in Nanaimo suggested that there'd be a basis to re-examine whether that mandatory minimum, which was the quid pro quo for getting rid of hanging people, remained constitutional. Or was that cruel and unusual? And when a judge is asked to examine that, the way they are required to examine whether something is a cruel and unusual punishment is they need to look first of all at the person, their fact pattern right, is it in this case? Would it be a cruel and unusual punishment to impose this? But even if they conclude maybe not for this person, they then must look at other what are referred to as reasonable hypotheticals right to see whether in some other reasonable case could it be. And so that caused the judge who was hearing the initial sentencing to look at that.
Michael Mulligan:And in that regard it's important to know that first degree murder the way most of us most of the time that made out is where you can show that the murder was planned and deliberate, right. We view it as more serious when somebody has thought carefully about what they're going to do and then goes over and commits a murder, as opposed to just in the heat of passion or something commits a murder. Both very serious, but we view it as more serious if you thought carefully about it. You know you've got your baseball bat, you've hopped in your car, you drove over and you murdered somebody. That's more serious, right, all serious, but that's more so.
Michael Mulligan:But there are other ways you can get to first degree murder, like, for example, if somebody commits a murder of anyone working in a prison with permission to work in the prison. That's first degree murder, right? Right, if you kill somebody who is a not only a jail guard, a jail keeper, various other people, a sheriff, deputy sheriff, various other people, in some cases a journalist, that one might be an important one, I guess. But there are other ways and you can imagine how in some case, let's say, a person had a, you know, got into a yelling match in the prison with the person there to collect the garbage and murders though right, didn't plan it. It's a murder. But it would be sort of on one level, yes, it's first-degree murder because the person was authorized to work in the prison. But on the other hand, that's more similar to what second-degree murder would usually be. If you murder somebody, it's still life in prison, but it may not have the same very high moral culpability of the person who's thought about it in advance, planned it out and then went and did it right. The person just kind of flew off the handle. Again, murder in serious, but maybe less so In any case.
Michael Mulligan:On that basis the judge said look, having the same sentence for any of these possible ways you could get to, first-degree murder could in some reasonable, hypothetical, be cruel and unusual in that circumstance. Now that was the decision of the judge dealing with the sentencing. But then, to further complicate things, that judge retired before the sentencing was finished because there was then further submissions and argument about that, and so a new judge had to take over the sentencing. And that's allowed, right, you don't have to redo the whole thing. New judge took over and in the new judge then it's analyzed. Okay, well, there's been this decision that with the faint hope clause gone, the judge has found that in some reasonable, hypothetical circumstance it can be imagined, you might wind up with a punishment that's grossly disproportionate and therefore cruel and unusual.
Michael Mulligan:So with that finding, now, what with this man? And so that's what was just dealt with up in Nanaimo, and the judge who took that over sort of went through all that, went through the reasoning of the judge that found that section to be potentially or to be unconstitutional for those reasons, but then had to decide what about this particular man? And for this particular man, the judge found that, even though the new judge even though that in some reasonable, hypothetical there could be a circumstance where the sentence would be grossly disproportionate, given the brutal nature of what this man did, right, he planned it carefully, went over and, you know, savagely beat this person and I think there was a daughter beside her in the bed when the murder was committed Terrible offense. And found that. So for this man, life with no possibility of parole for 25 years was not inappropriate, it was not excessive, it was the appropriate sentence, and so that's what this man received.
Michael Mulligan:The judge, and so did not do what the man's lawyer was asking, saying okay, well, kevin, found that that was unconstitutional, at least in some hypothetical circumstance reasonable hypothetical asked first of all that in this case it be a lesser sentence imposed.
Michael Mulligan:The judge said no to that and imposed what would ordinarily be imposed for first-degree murder.
Michael Mulligan:But the judge did find that the removal of that faint hope provision for offenses after 2011, as the original judge had found, was unconstitutional on the basis that there's just no rational basis for doing that, pointing out correctly that the chance of that happening is very slim, right, you have to persuade the judge that that's got a good chance of success, and then you'd have to persuade a jury that that's an appropriate thing to do at least 15 years down the road, and then you'd have to get the parole board to release you, and so the judge was at pains to point out that having that section found to be unconstitutional does not mean that this person is in any way likely to succeed in getting out earlier, but that removing that for cases after that date, as the original judge had found, does violate that provision prohibiting cruel and unusual punishment, and so it's a really interesting case in terms of its implications, because it means the law in DC.
Michael Mulligan:Now as a result of this is that the 25-year minimum parole ineligibility for first-degree murder would no longer be the law right, because there's a principle that other judges at the same level are to make the same decision right, you don't want to have sort of oddball decisions all over the place.
Michael Mulligan:There's a case called Spruce Mills that says that, so other cases will follow this, and also that that faint hope provision removal for murders after 2011 is no longer constitutional in British Columbia, so a very impactful decision. There's no doubt it'll be appealed and it'll be really interesting to see what happens in the Court of Appeal or eventually, the Supreme Court of Canada if it gets there. So I thought it was really interesting, in terms of murder sentencing, how you get to first degree what happens when a judge retires, and then also an example of how, even though in some circumstance, the judge found this might result in a grossly disproportionate sentence, for this particular man, given what he did, the sentence was just fine and so an important legal victory, I suppose, for him, but it won't have an actual impact on what's happening for the man who was sentenced in Nanaimo for the very bad murder.
Adam Stirling:Michael Mulligan during the second half of our second hour every Thursday. It's Legally Speaking on CFAX. Thank you so much. Pleasure as always.
Michael Mulligan:Thanks so much. It's always great to be here.
Adam Stirling:All right, quick break News is next.