Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Habeas Corpus, Cocaine Smuggling, and the End of Mink Farming
A fascinating exploration of justice, liberty, and the limits of government power unfolds through three recent BC legal cases. When a minimum-security prisoner at William Head was caught embracing a senior correctional officer, the warden's decision to transfer him to a higher-security facility backfired spectacularly. The BC Supreme Court ruled the decision "unreasonable," highlighting how even prisoners retain certain liberties that can't be arbitrarily removed. The judge particularly noted the warden's failure to address the significant power imbalance between the inmate and staff member – a consideration that might have led to very different outcomes had gender roles been reversed.
Border security technology stars in our second case, where sophisticated imaging detected 64 kilograms of cocaine hidden in the wall of a semi-trailer truck cab. The driver's claim of being a "blind courier" unraveled when experts testified that the elaborate hidden compartments would have cost upwards of $60,000 and taken weeks to install – an investment no one would make only to hand the vehicle over to an unwitting driver. The case reveals not only the sophisticated methods of drug detection at the border but also provides expert confirmation that cocaine primarily flows northward from Central America through the US into Canada, contradicting certain political narratives about cross-border drug trafficking.
Our final case demonstrates the limits of property rights in Canada as BC mink farmers lost their final appeal against the government's pandemic-era decision to permanently shut down their industry. Unlike the United States, Canada offers significantly less constitutional protection for private property, allowing governments broad regulatory powers without triggering compensation requirements. Whether you're concerned about prisoner rights, border security, or government regulation of business, these cases illuminate the delicate balance between individual liberties and state authority in Canadian society. What other industries might face similar regulatory challenges in the future?
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 Defense Lawyers. It's Legally Speaking on CFAX 1070 with Michael Mulligan. Afternoon. Michael, how we doing.
Michael Mulligan:Hey, good afternoon.
Adam Stirling:I'm doing great, always good to be here Some interesting items on the agenda this week. I'm reading number one. It says transferring a William Head prisoner to a higher security prison for hugging and consoling a senior staff member. What happened?
Michael Mulligan:Once again, not good things, and so the background of it is this local case, of course, from William Head, and the inmate involved in this case had been serving, and is serving, a sentence for first degree murder. He'd been originally incarcerated back in 2015, but apparently had done well in custody and had eventually as of 2023, been classified as a minimum security prisoner. And the way that works is that in the federal penitentiary system, there are different categories high security, medium, low and one of the things the system does is determine, you know, is somebody a risk? Are they going to try to escape or commit a further offense or something, and then put the person in the appropriate sort of institution. William Head, as many listeners will know, is a minimum security institution. The inmates there are responsible for like cooking their own food and cleaning their own rooms. They would live in a communal way in a townhouse, with the idea of trying to teach people the sort of life skills you would need eventually if you were released right, so that you would know how to budget your money and prepare your own food and get along with roommates, and all those sort of skills you don't get living in a concrete box. Yes, so this fellow had wound up being classified as minimum and he wound up being transferred to William Head Penitentiary in 2023. And so far, so good. Year when a staff member sent a report to the warden indicating that they observed this inmate in a darkened, locked room engaging in an embrace with a person described as a female correctional manager, a senior person, and, according to the email, kissing her. And that report resulted in the warden conducting some sort of an inquiry into that and ultimately made a. After a hearing where he got some written submissions, made the decision to increase the security rating of the indictment from minimum to medium and then had him transferred out of William Head to a medium security prison.
Michael Mulligan:Now here's how this gets into court. So there is a thing in Canada, and some other countries as well, called a habeas corpus application, and a habeas corpus application is described sometimes as sort of an exceptional remedy. It's served by a superior court judge and it can produce an order to release somebody who has been deprived of liberty in some way, and the release doesn't necessarily mean you're free to go anywhere you want, right, but even prisoners have some residual degrees of liberty, right? You know, if the warden said, I'm locking you in a tiny room for 24 hours a day forever, right? Well, that's not on, right, that would probably get reviewed. And the same can occur with things like an involuntary transfer to a higher security prison. You're going from living in a townhouse cooking your own food to being in a concrete box somewhere, right? So that would qualify as a deprivation of liberty, even though you weren't free in a complete sense, but you were freer. And so that's how the case got to the BC Supreme Court for a judge to review the decision of the warden. And when there's that kind of review the warden and when there's that kind of review, sort of like an administrative judicial review the judge is analyzing whether the decision in this case, well, it's two decisions one to raise the security classification from minimum to medium as a result of this embrace, and then the transfer.
Michael Mulligan:And the case is an example of what is required in terms of administrative decision making, right, people like government officials, who make decisions about people, don't get to come out like you know, a scene from the gladiator and do a thumbs down, right, they have to give reasons for what they're doing, right. And so that's what occurred in this case, and the judge looked at the reasons given by the warden and concluded in several respects they were simply unreasonable. And the unreasonable elements of them included the inmate, in this case repeatedly, clearly denied kissing. The senior correctional manager he had acknowledged an embrace said that he had hugged her because she had shared some troubling emotional things for her, he was consoling her that was his evidence and said that he had done this on another occasion with the same person and that this senior correctional officer had engaged in similar conduct with other incarcerated people. And so, first of all, the judge found the warden just didn't deal with in a meaningful way that disagreement about what was going on Was this a hug or was this a hug and a kiss? And just hadn't resolved that and no explanation for why that wasn't resolved.
Michael Mulligan:And there's a requirement to meaningfully engage with things that are actual issues in a decision, right, and that was part of it, what was going on here and just wasn't meaningfully decided. Another thing that Warden didn't deal with in a meaningful way was well, what about an alternative solution? If you don't think these inmates should be there, why not just transfer them to another minimum security institution? How does hugging somebody turn you into a medium security risk? And that wasn't considered. And then the final thing which the judge found to be most significant, was that the warden failed to the judge's term grapple with the existence of the power imbalance between the inmate and the senior correctional officer, which is important. The inmate apparently said at one point he felt uncomfortable about this, but he's an inmate and he's sort of required to comply with things that are being requested of him. He's serving a life sentence and has to do what correctional officers are telling him to do. You can imagine if the gender roles were reversed. I imagine it might have been quite a different decision.
Adam Stirling:If you're in a women's prison.
Michael Mulligan:you come into a dark room and there's a male, senior male official hugging a female prisoner who might have been kissing him. I doubt the response would be well, get her out of here, she's a security risk. And so the judge found that that also just wasn't reasonable. You just didn't address the fact that you're dealing with somebody who's basically powerless and can be ordered around by a senior correctional officer and you just have to do what they're telling you. And so, given all of that, the judge concluded that the decision to raise the security classification and transfer him out of there were just both unreasonable.
Michael Mulligan:The warden didn't address those things, didn't sort out who would be in charge of this embrace. The warden didn't address those things, didn't sort out who would be in charge of this embrace, didn't sort out what in fact happened and didn't look at reasonable alternatives other than sending him to a higher security institution. And so the judge overturned it. The warden's been overruled and the result is that the result of the habeas corpus application was successful. The petitioner is entitled to his costs and the direction is that he be immediately released from his mountain institution where he was transferred to and returned to a minimum security institution immediately. It doesn't necessarily have to be William Head, but that's where he's got to go and got to get on it. So that's the latest from William Head habeas corpus applications and what goes on if an inmate is caught embracing a correctional officer in a dark room.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Legally Speaking continues right after this. Legally Speaking continues. Michael Mulligan from Mulligan Defense Lawyers. Michael up next on the agenda. I'm reading here a conviction for importing cocaine from the United States into Canada, upheld on appeal, and that says 64, but I'm not sure what the unit is.
Michael Mulligan:Yeah, 64 kilograms which is for those of us that may not have our head entirely around the weight metric system 141 pounds of cocaine, so a fair bit of cocaine, and, contrary to what you might hear from President Trump, one of the interesting things was expert evidence in the case about the direction of travel for drugs from Central America through the United States, up I-5 and into Canada as the ordinary route of these things, at least for cocaine, and the fact pattern here is an interesting one. I thought people might be interested to hear about both how this was detected and evidence in the case. That was expert evidence about the two kinds of couriers that are used for cross-border transportation of drugs, and the case turned really on that and the fact that the two types of couriers are either couriers who know they are carrying drugs or the other type of courier referred to as a blind courier, and a blind courier would be somebody who is transporting drugs not knowing that they're transporting drugs, right, and that could be anything from some small time thing like putting something in a person's suitcase to potentially, for example, loading a bunch of drugs in with other let's say, fruit or vegetables or whatever and have some truck driver who doesn't have any idea what's in the back of their truck and have them drive it across the border. And the import of that, of course, is, if you're a blind courier, virtually by definition, you don't know what's in there. You haven't done anything intentionally wrong, right? So you wouldn't have any liability.
Michael Mulligan:And this case involved a semi-trailer truck, and the drugs in this case, interestingly, were not in the like where the goods would be in the back. What happened is, when the truck was coming across, they decided to send it for a secondary inspection and imaging of the truck, so I guess sort of an X-ray imaging of the truck showed the presence of a mass in the back wall of the cab that would normally be hollow. And the other interesting thing is that the border security keep images, previous images of the same vehicle to compare them, and they compared the image with an image that was taken back in 2018, when there was no similar anomaly found in the back of the truck right through the wall of the truck, and so that led to further scrutiny, right, they started with the imaging, saw this mass, and then they eventually found at the back of the cab there was a bunk area, two bunks top and bottom Top bunk. Well, both bunks had panels in front of them like decorative panels, which they popped off, and then there were something like 20 or 30 screws which they undid and after you took all of them off the top one, they found inside it the 64 kilograms of cocaine. The bottom bunk they took off. It had a similar panel but nothing in it.
Michael Mulligan:Now, at the trial, the other evidence included some interesting evidence about fingerprints and what they found was that they found fingerprints that matched the driver of the truck on the panel, the backside of the lower panel, the one that had nothing in it. The upper panel had a palm print that was not the driver's and there were some fingerprints on the drugs not the driver's. The driver testified and said I had no idea that these drugs were in there and he claimed that when he first purchased the truck after he had arranged to buy it, when he picked it up a few months later he noticed there'd been a bunch of work done on the inside of it, including sort of cosmetic work, and he claimed that he had, when there's no air conditioning in the back, took off the bottom panel to see what was going on, if there was air conditioning wires or ducts back there, found none, put it back on. Didn't think that was unusual, thought it was just a space for wires, I guess for air conditioning, where there was none. So that was his explanation for why his fingerprints were back there.
Michael Mulligan:But the judge in this case found that there were a number of things which persuaded her beyond a reasonable doubt that he was aware of what was going on. And that included expert evidence from a person who gave expert evidence about hidden compartments in vehicles and said that these particular kind of hidden compartments would have been taking a long time to put in, in the order of weeks to install, and would have cost between $60,000 and $100,000 to put in. I guess a whole bunch of custom work and all those screws I guess are expensive, I'm not sure, but very careful custom work to create these hidden compartments. And the judge found it unlikely that the person selling the truck would have spent a long period weeks and a very large amount of money putting in these secret compartments only to then turn the truck over to somebody. He thought that was just too speculative or too unlikely if you were trying to create your own blind courier, if you were trying to create your own blind courier, and the expert included evidence about why blind couriers can be problematic if you're a drug trafficker, including things like you've got no control over where the person is actually going. They could change their schedule, you know. You thought they were taking the cherries to Vancouver, but they I don't know decided to divert to Seattle or something, and so you might be chasing around your load of cocaine, and so ultimately the judge found that there was rejected his evidence.
Michael Mulligan:The other interesting thing on the appeal is that both lawyers made submissions about what should happen, and then, two weeks before the judgment came out, the judge reserved. The defense counsel had gotten transcripts of everything that was said at the trial, and sometimes those take a little while to type up, and the defense lawyer thought well, there's some additional important points in here, and prepared 47 pages of additional written submissions pointing out specific things that they hadn't noticed when they made their oral submissions, before reading the transcripts. And the Crown objected to the judge being given those additional submissions, and so there was a hearing about whether the judge should read those things, and ultimately she decided no, she wasn't going to read them, on the basis that they had already. Both the Crown and the defense had an opportunity to make submissions and found that it wasn't appropriate to allow additional written submissions after reading the transcripts. Interestingly, on the appeal the Court of Appeal said that's fine, there was no necessity for additional submissions being permitted, and so the judge made her decision in convicting the man without reading the additional written arguments made, after the lawyer reviewed the transcripts. But the Court of Appeal found that was fine and there was no right to do that and didn't think it would have made a significant difference and so upheld the conviction.
Michael Mulligan:And so I thought it was an interesting case, both in terms of that issue and that concept of blind and not blind couriers and also just the degree of scrutiny that goes on at the border, including imaging and comparing the images of vehicles on different occasions, where they've been imaged on multiple times to see if there are any changes. And that's what prompted them to take the time to unscrew the panels. So clearly there's some careful scrutiny going on at the Canadian border, at least on the Canadian side, and clear evidence that the direction of travel, at least for cocaine, is not from Canada South, it's from the US North, which is interesting in the current context of tariffs being imposed for a failure to stop drugs going across the border. It's pretty clear at least the direction that drug is traveling.
Adam Stirling:All right, three and a half minutes left and it says an appeal from BC decision to force all mink farms to close dismissed.
Michael Mulligan:Yeah. So if you're feeling bad as an Airbnb owner getting shut down, you'd be feeling worse if you were a mink farmer. And the background of this case is that it originated back in the time of COVID, covid-19. And in 2021, the provincial government decided to change regulations to force all mink farms to close permanently, and they did so on the basis of saying that there was evidence about COVID spreading amongst mink and how they could get respiratory viruses, and so that's the end of the mink farms in British Columbia, and it resulted in this piece of litigation where the mink farmers were arguing that that government decision amounted to either a malfeasance in public office or a constructive taking of their property, for which you might get compensation. Now, the malfeasance in public office argument is one which courts have said. That is an argument you can make. If you could establish that the government had engaged in activity which was egregious and, for example, intended to injure a person or classes of persons Like if you had a government decision just out of, let's say, political vengeance, where you're trying to cause harm to somebody kind of like the daily Trump decisions that could be reviewed. But that kind of a review has to be used with great caution and restraint, because it's intended, as the court said, to deal with egregious intentional misconduct by the government, not for maladministration, incompetence or bad judgment which this may or may not have been, but that's not enough to review it and then also rejected the idea that there could be any hope of success on the basis of a constructive taking. And the argument there is that you know, if you have your property expropriated, taken completely by the government, there's a presumption that you would get compensation for it. It's not a constitutional requirement but it's a presumption. And the concept of constructive taking comes from, amongst other cases, a decision called Annapolis that the Supreme Court of Canada dealt with a few years ago, where a municipality didn't say I'm expropriating your, it was somebody who wanted to develop a large piece of property to put housing and stuff on it, and instead they just put in conditions meaning you couldn't use it for anything else other than really park land, right. They say, look, you can only. And so yeah, I haven't taken the property from you, I've just made it impossible for you to use it such that the public can now just use your property as a park right.
Michael Mulligan:And so that was found to be, in that case, a constructive taking deserving of compensation, and the novel argument that the mink farmers wanted to make is that they were arguing that what was going on here was not some effort to control COVID-19. They were alleging that the government was making a political decision, getting some political benefit for that, and that they had caved to the anti-fur lobby and public opinion in banning mink farms, and so it was sort of an idea that maybe they were getting some other kind of a benefit like that a public, maybe a political benefit, something else, some benefit for the government by banning the continued mink farming. But the court found that that was so novel as an interpretation of that. It wasn't the equivalent of you know, telling you you can only build playgrounds and swings on your property that you previously wanted to build houses on, which amounted to just taking it for public use. That doesn't do it.
Michael Mulligan:That might be like if the government said we're taking all Airbnbs and turning them immediately into free homeless shelters or something. That might be an example of a constructive taking of something, but it didn't apply here. So it's another example of how in Canada, unlike the US, we don't have a protection for private property and so you can have decisions like shutting down all Airbnbs or shutting down mink farms, and unless you've got a particularly novel argument, you're likely to just be out of luck on both those grounds. So that's the latest from the Court of Appeal with respect to mink ranching.
Adam Stirling:Michael Mulligan, with Mulligan Defence Lawyers, legally speaking Second half of our second hour every Thursday here on CFAX. Thank you, michael, pleasure as always. Thanks so much, always great to be here.