Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Tragic Intersection: The Thin Line Between Mistake and Crime
When does a driving mistake become a crime? The latest Court of Appeal ruling tackles this haunting question through the case of a driver who missed a red light, causing a collision that killed an 18-month-old child and seriously injured the father. Despite the devastating outcome, the court upheld the driver's acquittal on dangerous driving charges, drawing a careful distinction between tragedy and criminality.
The case illuminates the legal threshold for dangerous driving in Canada. Unlike provincial traffic violations, criminal dangerous driving requires a "marked departure from the standard of care of a reasonably prudent driver." This distinction carries enormous consequences in BC's no-fault insurance system, where criminal convictions can leave drivers personally liable for millions in damages with no insurance coverage. The ruling affirms that momentary lapses in attention, while potentially catastrophic, don't automatically cross into criminal territory.
Also examined was a fascinating estate case spanning nearly four decades. When a terminally ill woman created her will in 1984, she couldn't have anticipated her modest $50,000 home would be worth $1.2 million by the time her partner died 37 years later. The court had to determine whether her children should receive half the original value or half the current value—ultimately ruling that the original value prevailed. Finally, we explored how "unexplained wealth orders" in civil forfeiture cases can force individuals to account for suspicious assets like million-dollar properties and cash hoards that don't match their declared income.
These cases remind us how legal decisions shape lives in profound ways, whether determining criminal liability for split-second errors, interpreting decades-old intentions, or requiring explanations for suspiciously acquired wealth. Subscribe to our podcast for more insightful legal analysis that makes complex Canadian law accessible and meaningful.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment with Barrister and Solicitor, with Mulligan Defence Lawyers, joined by Michael Mulligan Afternoon. Michael, how are we doing?
Michael Mulligan:Hey, good afternoon. I'm doing great. Always good to be here.
Adam Stirling:Interesting stories on the agenda today, including a momentary lapse of attention driving into an intersection, causing death and bodily harm. Is that criminal code dangerous driving?
Michael Mulligan:dangerous driving. Well, that's exactly what the Court of Appeal just had to wrestle with on an appeal by the Crown from an acquittal on that fact pattern. And the background of it is this it's a case out of Lower Mainland and it involved a man driving a vehicle. And I should say it's interesting because the accident in question was recorded from multiple angles and so there was little doubt about what factually went on. And the issue in the case was whether the driving constituted dangerous driving under the criminal code. And just by way of background to know about that, dangerous driving under the criminal code is a fairly serious offense right. It is distinct from like driving without due care and attention under the Provincial Motor Vehicle Act right, and particularly in our current circumstance in BC, with no fault. It has really profound implications because if somebody is convicted of a criminal code driving offense, not only does no fault not apply and the person can be sued civilly for damages, but in addition it also means that you're in breach of your insurance policy. So you're completely on your own, potentially for, you know, millions of dollars in damages or loss, and so it really has a real significant impact on what happens Now. In fact, in this case. This man was driving along in his vehicle and driving in a completely unremarkable way. The judge found that he was not speeding, he wasn't driving erratically. Testing confirmed he had no alcohol or drugs in his system. His phone hadn't gone off. They checked the phone. He was driving in a straight line at or below the speed limit. Nothing unusual about how he was driving. His speed varied between 41 and 50 kilometers an hour and they could calculate it pretty precisely because it was on video and they had data from his car. Everyone agreed nothing unusual there. He just drove through a red light is what happened. For reasons unknown, the judge concluded he just didn't see the red light and he drove through the red light. Another car hit him who was coming through in a green light, causing the driver who went through the red light vehicle to roll over onto the sidewalk and tragically it hit a man carrying his 18-month-old. The man was very seriously injured and the 18-month-old was killed instantly. So tragic accident.
Michael Mulligan:He was charged with dangerous driving and now there was at one point a legal debate in Canada about what the mens rea, the mental requirement for the offense of dangerous driving, should be right. There was at one point a debate about whether that should require what's referred to as advert negligence. Like, does that require somebody to say, hey, I'm about to do something dangerous, I'm going to go do a street race or something right, or is it something less than that? And eventually the Supreme Court of Canada concluded that it does not require what would be referred to as advertent negligence.
Michael Mulligan:The Crown doesn't need to prove the person intentionally did something careless, like you know, having a street race in the middle of Douglas Street, or something right. And so what's applied is this modified objective standard and what's asked of a judge is to determine whether the driving was objectively dangerous. Right, and no doubt going through a red light is dangerous. That's not complicated. But the issue would be is this a marked departure from the standard of care of a reasonably prudent driver? That's the language used of a reasonably prudent driver.
Michael Mulligan:That's the language used. And in this particular case the trial judge, having heard three days of evidence, watching all the videos everything was admitted in terms of what happened right Concluded that this was not a marked departure from the standard of care of a reasonably prudent driver. And in acquitting the man, the judge said this, unfortunately said a momentary lapse of judgment, without more, cannot establish the actus rea and mens rea of the offense of dangerous driving. Now that statement is not correct legally and that's because there is appellate authority for the proposition that a momentary lapse of judgment. You know somebody, you know just something goes wrong. You don't see the red light, right?
Michael Mulligan:Yeah you, it could constitute a marked departure from the standard of care, even though there's appellate authority for the idea that a momentary lapse of judgment wouldn't usually result in that sort of high threshold. But it could right. That's really what the law amounts to. And in saying that, the Court of Appeal and the Supreme Court of Canada said things that, for example, case law realizes that even the most prudent driver from time to time might experience a momentary lack of attention or judgment, and while that could constitute a marked departure usually it wouldn't but it might. And so the trial judge acquitted the driver, saying well, look, everything was fine. For some unknown reason he just didn't see the red light and so acquitted him.
Michael Mulligan:The Crown appealed the acquittal and, as the Court of Appeal pointed out, the circumstances in which the Crown can appeal are relatively modest and there's a. Acquittals aren't lightly overturned. And they pointed out the Crown has no right of appeal. If they argue that this decision was unreasonable or that the judge should have weighed the evidence up differently, the judge, the Crown would have to show that there has to be sort of a fundamental legal error that tainted the outcome and furthermore, that there'd be a reasonable degree of certainty that the verdict would not necessarily have been the same had the error not occurred. So that statement that the judge made as part of her long reasons was not correct. But the Court of Appeal went on to point out that when there is an appeal, it's not a matter of picking through line by line a judge's reasons to see whether you can find that they said anything that was incorrect. Maybe the momentary lapse of judgment is not enough, for an appeal might be a way to put it. And so here the Court of Appeal went on to look at the whole analysis because, as judges are required to do, they have to explain themselves. They don't just make a decision. And here the Court of Appeal pointed out that that particular line is wrong. It may be that usually the momentary lapse of judgment wouldn't be enough. It could be. But the Court of Appeal pointed out that when you read all of the judges' reasons, she went on to analyze the correct cases. She went on to analyze the correct statements of the law. She did analyze it in terms of what ultimately that test is, whether it's a marked departure from the standard of care of a reasonably prudent driver, and so on a two to one split, the Court of Appeal dismissed the Crown's appeal from the conviction and upheld the acquittal.
Michael Mulligan:But there are a few things in that I thought were interesting. First of all, that sort of analysis on appeal. But it's also important for people to know that's how the standard is expressed and, as you can imagine, there is a wide range for discretion when sorting out. You know, is that a marked departure from the standard of care? After all, people don't usually make a mistake and go through a red light. And it's also a reminder for people because of course driving is often sort of an autonomic thing. But you know, people are experienced drivers are not consciously thinking of every press of the pedal and every turn of the wheel Right People, it's sort of an activity. Sometimes people are doing it in a virtually automatic, reflexive way, because they do it so frequently, like walking, you don't think left foot, right foot, left foot, right foot, you just walk down the street right.
Michael Mulligan:And so the case is also an example of just how precarious things are. Driving is, of course, inherently dangerous, but just how even a momentary something right, whatever we will never know why the man didn't see the red light can turn into potential criminal liability and not only a tragedy and a death. But you know, a person could go to prison, they could be financially ruined, they could have no insurance, it could have massive implications and all of that really comes down to that decision a number of years ago about, well, what's required for this concept of dangerous driving, bearing in mind that ordinarily the criminal law is concerned with people doing things intentionally wrong. You know, like we don't criminally punish people for tripping and falling into others, right, we punish people for pushing them, not falling down. But the way that's been interpreted in terms of this modified objective test is it turns into an assessment as to whether it would be a marked departure from that standard of care.
Michael Mulligan:Sometimes, when I'm describing that to people and it doesn't really fit here, but sometimes the way I would describe that to people would be, you know, if it's the kind of driving which, if people saw it, they would say, oh, my goodness, this person's going to kill someone you know, and would sort of phone into the police or something about it, right, rather than just, oh, that person, you know, maybe they shouldn't be drinking that super big gulp while they're, you know, driving down Douglas Street or putting on their lipstick or something right, but that's the outcome of this case, at least on a two to one split, and it's also, I think, just cause for reflection to people about how we handle these things. Not every tragedy, of course, is a crime, and none of that should, nor should this decision be taken to suggest that somehow what occurred here is not an absolute tragedy for the family of the and the man involved at the 18 month old. It absolutely is. But, um, you know, we are all, of course, very fallible.
Michael Mulligan:Um and uh, you know. I think many of us could appreciate how it is. Somebody might make a momentary mistake, sober, nothing else is wrong. They just made a mistake, they didn't see the light. Um and uh turned into not only a tragedy but years of litigation that eventually resulted in this. So that's the latest from the Court of Appeal on what is and what is not dangerous driving.
Adam Stirling:Michael Mulgan, with Mulgan Defense Lawyers. Legally Speaking will continue right after this. Legally Speaking continues on CFAX 1070, joined as always by Michael Mulligan with Mulligan Defense Lawyers. Michael, what's next on our agenda?
Michael Mulligan:Next on the agenda is an interesting decision also out of the Court of Appeal just came out, and it deals with interpreting a will and how that's supposed to work in a circumstance which I imagine isn't terribly uncommon these days. The background of it it goes all the way back to 1984. And back in 1984, the woman who was making her will was terminally ill. She knew that she was in hospital and five days before she died she severed the joint tenancy in the home that she owned with her common-law partner and then, two days before she passed away, she created a new will. Anybody ask why? Well, the consideration, I suppose, for her back in 1984 was that she had four adult children from a prior relationship and it appeared she wanted to achieve the objective of having her current partner be able to continue to live in the home that they purchased together but wanted to see eventually her half interest in it be given to her kids. And that concept of severing the joint tenancy is that in many cases property are owned in joint tenancy, meaning if two people own it like a husband and wife, if one of them passes away, the other person just gets the full benefit of the property. Right, they then own it like a husband and wife. If one of them passes away, the other person just gets the full benefit of the property, right? They then own it, doesn't even go through a will, and so in this sort of a circumstance the person was concerned about, well, I want my kids to get some benefit of this when, eventually, my partner passes away. And to achieve that, they created or she created in her will a relatively unique provision after severing the joint tenancy, saying that her current partner shall receive the benefit of her divided half interest, right? Remember, she severed it in the property and that he's permitted to use it for the rest of his life, as long as he lives there, as long as he lives there. But if he sells it, then he's got to provide to the kids the value of her half interest minus the amount of the mortgage, right? Or eventually, when he dies, that should be the result. So that's what it said.
Michael Mulligan:Now, her common-law partner from back in 1984, she passed away just a few days after doing this. Two days before her death, she made the will. Now, he remarried and led a very long life continuing to live in that very home and he lived for another 37 years living in the same home, paid off the mortgage, lived there with his new spouse. No longer was there any mortgage. The original clause said that the adult kids were not responsible for paying for any of the taxes, insurance, repairs or anything else to do with the home. So he lived there for 37 years and then passed away. And then there are two possible interpretations of what the will indicated the kids, the adult children. I should say this this is the other thing that made this really meaningful. She could not have foreseen what would have happened to real estate prices in the lower mainland between 1984 and 2001. Oh yeah, and so the home back in 1984 was worth about $50,000 and it had a $22,000 mortgage on it, right?
Adam Stirling:Yeah.
Michael Mulligan:You know, it's the price of a car in Vancouver now and it was valued in 2001 at $1.2 million and had no mortgage on it. So two possible ways to interpret what she had said. The kids' argument. The adult children's argument was well, what she meant to do was to give her then partner a life interest in her half of it and they should get what amounts to $600,000 divided up amongst half of them, the half value of her home. The alternative interpretation, argued by now the widow of this man right, they're 37 years, married in 1997, her argument is well, no, no, what they are entitled to, pursuant to how that was drafted, is they were entitled to the value of the home at the time she passed away. So one half of $50,000 minus her half of the mortgage means that they would each receive 25% of $14,000. So the difference is do you divide up $600,000 or $14,000.? So the difference is do you divide up $600,000 or $14,000? And this first of all went to. So it was brought to court. This provision.
Michael Mulligan:You can come to court to have a judge determine how the will is to be interpreted, and both the initial judge and now the court of appeal looking at this concluded that. You know, of course the woman could not have foreseen what would have happened to the real estate market, nor would she have foreseen the fact that her then partner would have lived at home for a very long life 37 years and even though it might now be viewed as unfair from the kid's perspective, the language of what was said there including, for example and the judge paid particular attention to the fact that the way the amount was to be calculated was to be the market value less one half of the indebtedness right the indebtedness was $22,000. The market value was $50,000. And they said look, you know, the task is not to try to redraft the will in some fairness way. The purpose of this kind of an interpretation is to try to establish, well, what was the wish of the testator at the time this will was created, and there's no reason to think she had planned for what this property might be worth in 37 years or all of that. And so the conclusion was that, no, the way this is worded, it would be the $14,000, what it was, what her half share was worth at the time, minus the mortgage which, of course, he eventually paid off, presumably living there for 37 years. And so that's what the kids will get.
Michael Mulligan:And so it's interesting in terms of people trying to sort out this problem, which isn't going to be a unique one, but it's. How are these things to be considered? And a reminder that generally, you know, when a court is interpreting a will, the starting point is to try to determine what was the primary objective is, what were the intentions of the testator, what were they intending, and to try to give meaning to that, rather than have the judge sort of sit in a sort of armchair way now and say, well, what would I have done? And so that's the latest report of appeal and how that's to be interpreted in terms of division of property and a will.
Adam Stirling:All right, we've got a minute and a half remaining.
Michael Mulligan:So final case people should know about.
Michael Mulligan:It's an interesting and fairly unique case involving civil forfeiture and it involves this concept of what's called an unexplained wealth order should know about.
Michael Mulligan:It's an interesting and fairly unique case involving civil forfeiture and it involves this concept of what's called an unexplained wealth order, and the background of it is that a man and woman own various properties worth millions of dollars, and the police wound up getting called to one of them as a result of gunshots on a blood trail, and in the properties eventually were found things including $1.495 million in Canadian cash, a bunch of US cash, signs of marijuana grow operations and so on, and when then they looked at the income tax returns for these two people, they had very modest amounts over the past 20 years they had declared as income income.
Michael Mulligan:Also, interestingly, in one of the homes there was paperwork from a woman indicating she was applying to get a $1,000 child benefit, claiming she had very little income, when she in fact appears to have very large sums of money being deposited into the bank and owning all these properties. And so there is provision in the civil forfeiture legislation to allow the director of civil forfeitures to apply for one of these things called a unexplained wealth order, and what that requires is it requires, in this sort of a circumstance, where a judge is satisfied of all the requirements for one of those, that the people against whom, ultimately, the application for civil forfeiture is made it requires them to provide, basically, an explanation and accounting for. Well, how is it that you own millions of dollars in houses when you claim to make $22,000 a year?
Adam Stirling:Where did that pile of cash come from and what was going on with?
Michael Mulligan:the marijuana grow operations. The woman involved, trying to resist this, suggested that the money was quote lucky money, close quote and had photographs of red envelopes supporting this claim. But there was no actual evidence about that. So the net outcome here people just be aware of it, as people can be required to make this, comply with this kind of an order and provide a full explanation for how did you wind up with all this money in these houses? When you say you made very little in your income tax returns, so that's what an unexplained wealth order is. That's the latest on that world of civil forfeiture.
Adam Stirling:All right, michael Mulligan, with Mulligan Defense Lawyers, legally speaking, during the second half of our second hour every Thursday. Thank you so much. Thanks so much. Always great to be here. All right, quick break News is next.