Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Replaced by Mr. Bean in an Office Without AC? That's Constructive Dismissal
Fentanyl trafficking sentences in BC just got a major overhaul. The BC Court of Appeal has mapped out clearer sentencing guidelines, creating a three-tier system that reflects the devastating impact of the deadly opioid crisis. Street-level dealers now face 18 months to 3 years, mid-level traffickers 4-7 years, and wholesale distributors 8-15 years behind bars. The Court emphasized this framework still allows judges to tailor sentences to individual circumstances, but makes clear that the gravity of fentanyl trafficking demands serious consequences. With over 14,500 British Columbians having lost their lives to toxic drugs in just eight years, the justice system is responding with a structured approach to punishment.
At Simon Fraser University, academic freedom and freedom of association collided when faculty members challenged their own Faculty Association's resolutions on Gaza. The controversial statements narrowly passed but sparked a legal battle under the Societies Act. The case highlights a fascinating tension - what happens when you're required to belong to an organization that takes political positions you fundamentally oppose? The court ultimately allowed the Faculty Association broad latitude in its activities, continuing a precedent that permits professional associations to venture beyond their core employment-related purposes. This ruling affects anyone in Canada who must maintain membership in unions or professional organizations.
We wrap up with a constructive dismissal case that seems straight out of a comedy sketch - except it was all too real for the employee involved. A 63-year-old comptroller was given notice of termination but required to keep working for eight months while being gradually replaced by someone actually named "Mr. Bean." Adding insult to injury, the employee was relocated to an interior office without air conditioning (at an air conditioning company!). The court recognized these cumulative actions created an intolerable work environment, awarding 15 months' severance and confirming employers cannot circumvent termination obligations by making work conditions unbearable.
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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. It's Legally Speaking on CFAX 1070 with Michael Mulligan, Afternoon. Michael, how are we doing? Hey, good afternoon.
Michael Mulligan:I'm doing great. Always good to be here.
Adam Stirling:Some interesting topics on the agenda today. Off the top, it says the BC Court of Appeal provides further guidance with respect to sentences for fentanyl trafficking. What's the story?
Michael Mulligan:Well, the first thing about this is it gives some insight into how do judges come up with sentences and how do we try to make sure that they're similar, that kind of thing. And, of course, the justice system in Canada is a hierarchy right. Lower level judges have to listen to what higher court judges have to say, and so in BC, the BC Court of Appeal will, in some circumstances, provide guidance for trial judges about what sort of range of sentence might be appropriate for a particular type of offense. And the idea, or one of the ideas there, of course, is that we want to have some consistency so you don't wind up with completely arbitrary outcomes in different cases for different people with similar fact patterns. Right Now, the next thing to know is that the Court of Appeal doesn't lightly interfere with decisions made by trial judges, and one of the things which, in the case I'm going to talk about, which is this new case dealing with fentanyl sentencing, the Court of Appeal is at pains to say in more than one place in the judgment. Nothing being said there should be interpreted as taking away from the all-important individualization of the sentencing process. Right, so we don't have in Canada, grids or, other than in a few rare circumstances required sentences. Because human affairs are so infinitely variable, trial judges have a wide range of discretion, and so when the Crown or defense appeals a sentence imposed by a judge following a conviction or guilty plea, the Court of Appeal can only interfere with it if they find that the sentence imposed is what's called demonstrably unfit, which means that the sentence must unreasonably depart from principles of proportionality, must be manifestly excessive or inadequate, and cannot reasonably be seen as proportionate to the gravity of the offense and the personal responsibility of the offender.
Michael Mulligan:So now, this particular case involved a man who was convicted of possession of drugs for the purpose of trafficking, including 834 fentanyl pills and 35.13 grams of MDMA.
Michael Mulligan:The evidence was that the quantity of drugs he had all totaled added up to about $250,000 worth.
Michael Mulligan:It was originally a Crimestoppers tip that led to surveillance and eventually a search warrant for the person's bedroom, and those things were found, along with other significant items, including a scale, kilogram, kilo wrappers, a kilo press, a thousand small baggies, and on and on it went.
Michael Mulligan:So it was clear that what was here was more than just a personal use amount. Right, and the judge that sentenced the man took into account a number of considerations, including the fact that he had no criminal record. He was the sole caregiver of a vulnerable teenage daughter who didn't get along with her mother, so it would have major impacts if he went to prison and various other mitigating factors, and the judge of this case imposed a two-year conditional sentence, which was on house arrest, followed by three years of probation, and that got appealed by the Crown to the Court of Appeal, who ultimately concluded, taking into account a consideration of the harms caused by fentanyl, which there was evidence of that presented at the sentencing hearing, including evidence from the BCD's coroner's service which, as of 2024, concluded that over the preceding eight years 14,582 people in British Columbia had died from toxic drug use and fentanyl continues to be the primary driver of those deaths right.
Michael Mulligan:Now I should say there for a moment that language that sometimes is cropped up of toxic drug use seems to sort of imply that somehow the fentanyl was doctored to make it unsafe. But of course it is always unsafe, right? Taking fentanyl is deadly. And so here the Court of Appeal found that the sentence imposed, despite the mitigating circumstances and impact on the man's daughter and so on, was demonstrably unfit and so determined that they were able to interfere with the sentence and in so doing they laid out sort of guidelines, starting point ranges for those for three different categories of offender. The first category is described as a street-level person who was trafficking in it, you know, on the corner of Pandora Avenue or something, and for that category of person and the starting point or the range would ordinarily be something between 18 months and three years in prison. Then they describe what's been referred to as a mid-level range for people who are sort of mid-level traffickers, and they concluded that this man in this case was in that category of being more than just a street trafficker, sort of addict person, and for that category they indicated that the ordinary range would be somewhere between four and seven years. They did point out examples of cases where that is departed from, bearing in mind what I indicated at the outset here, that it's an individualized process and nothing the Court of Appeal is saying means that a judge cannot depart from the range range they pointed to, for example, cases where there were what are referred to as glad-do factors, where you've got an Indigenous person who's being sentenced and the sentence that might otherwise be appropriate might be reduced, taking those into account. And so they gave examples of those as where there might be a departure and then indicated and this comes from a Supreme Court of Canada case a few years ago that for high-level dealers at the wholesale level it sort of suggests Costco, would be something in the order of 8 to 15 years in prison. And so again, none of those are hard and fast rules. There is discretion where there are particularly salient sort of human factors or GLADU factors or other things that might justify a departure from the range. But it is some guidance from the Court of Appeal about what might be expected and it will be interesting to see again. You know sentencing are intended to achieve a variety of things, including rehabilitation, some element of retribution, denunciation, deterrence in some general way, like both for the person, and here, interestingly this man had no previous record and it took some time for the case to be concluded. He hadn't committed any other offenses in several years. But with these sort of things I guess more so perhaps at the sort of high wholesale level or sort of mid-level of the activity, as opposed to the person who's the street-level addicted drug seller trying to get money to buy their next hit of fentanyl Perhaps there is some chance that general deterrence would have some impact if somebody says oh my goodness, I could go to prison for 15 years if I carry on with my Costco-level distribution of fentanyl. Maybe there'll be some consideration there. I must say I could go to prison for 15 years if I carry on with my Costco-level distribution of fentanyl. Maybe there'll be some consideration there.
Michael Mulligan:I must say I rather doubt the drug-addicted street-level trafficker who's selling drugs in order to feed their habit, who's already of course risking death by their use of the drugs, is likely to be reading or deterred by what the Court of Appeal is saying. But maybe there would be some impact at the higher level if there's a bit more sophistication and the people might be listening to this or, you know, aware of what's happening. Unlike, I think is unlikely to be the case. With people who are, you know, street entrenched drug addicted people who are selling some small amount to the next addicted person next to them. I'm hard pressed to know how that person is going to look at the Court of Appeal decision and say, gee whiz, I think I better give this up. That seems very troubling. So that's the latest in the Court of Appeal and that's the range of sentences that would be expected, except in cases that are out of the ordinary, for possession for the purpose of trafficking fentanyl in British Columbia.
Adam Stirling:Michael Mulligan with Mulligan Defense Lawyers. Legally Speaking continues right after this. Back to Legally Speaking on CFAX 1070. As we continue our conversation with Michael Mulligan from Mulligan Defense Lawyers Michael up next on the agenda, I'm reading here challenge to faculty association of Simon Fraser University. Resolutions on Gaza dismissed. What happened?
Michael Mulligan:Well, quite a bit actually. So the particular case court case was brought under the Societies Act and in particular Section 104 of the Societies Act, which is a provision that allows there to be a judicial challenge to activity by a society which is inconsistent with its purposes. So that's the legal basis for this case getting into court, and the activity in question was it was a challenge brought by a whole bunch of it looks like professors from Simon Fraser University who were challenging the legality of resolutions that were passed by the Faculty Association. Now, the Faculty Association is a society. Its primary function is to act as the equivalent of the union for the faculty members at Simon Fraser University, so it would like to negotiate contracts and whatnot and collect dues and so forth. But some members of the Faculty Association brought this long resolution, which had, as many of these things do, perhaps more so in academia a whole series of whereas provisions dealing with what's going on between the Palestinians and Israelis, and so, for example, the long list of whereas provisions had things like whereas Canadian universities, including SFU, are complicit in the Israel project of occupation and apartheid through their partnership with Israeli universities. That just gives you a flavor of what's the sort of stuff that was included in this motion for this resolution and eventually this series of resolutions just kind of squeaked through. Like the general resolution passed, 333 to 326. So it sort of squeaked through with 41 people abstaining unfortunately, maybe they should have voted. So it squeaked through, but it included a couple of provisions that were specifically challenged. Both of the provisions are provisions which have the language of calling on Simon Fraser University to do various things, like, for example, the Faculty Association, as a result of the resolution, was required to call on the Simon Fraser University to take certain positions with respect to Gaza and call on the university to divest corporate engagement in military arms production, and so on. So anytime you see a resolution with the term call on, it actually for me calls to mind if you remember the episode of the Office where Michael Scott comes into the office and then, after he leaves the lunchroom and comes in and yells out that he declares bankruptcy. Yes, that's not quite how it works. So anytime you have a resolution that calls on somebody to do something else is an indication that you're pushing on a rather limp rope. But nonetheless, I think it's perhaps understandable why this group of professors was not happy with these call-on resolutions with that series of whereas provisions.
Michael Mulligan:Now, one of the things that that interestingly brings to mind is the issue of compelled membership in things like unions and other organizations. Right, we have in Canada a constitutional right to freedom of association, and freedom of association generally includes a freedom not to associate with other people. Right, if you? You know, the starting point would be if there's some organization that you don't like, that they're passing resolutions calling on people to do this, and that ordinarily you wouldn't be forced to be a member of them. But here these people couldn't get out because the contract with the Simon Fraser University requires all faculty members to be members of the Faculty Association. So they can't just get out of this by saying I quit, I'm not interested in calling on these things.
Michael Mulligan:And there's a Supreme Court of Canada case that dates all the way back to 1991 that deals with the issue of, in that case, the way back to 1991. It deals with the issue of, in that case, a community college teacher back in Ontario who was required to pay union dues and that person's union was doing various things, including making donations to the NDP party, and the person wasn't a supporter of the NDP and so their position was I don't want to be forced to pay union dues so the union can then pass those along to the NDP. That's not fair, and in that particular case there was a provision that sometimes exists, called the RAND formula in Canada. The idea is that you could opt out of being a member of the union but you have to still pay the union dues. So it's a bit of a symbolic opting out. You still have to pay for it. And that fact pattern ultimately got all the way to the Supreme Court of Canada, who at that point it's a split decision, so it survived narrowly on different legal interpretations as to how that should be assessed, whether that should be a Section 1 limitation on the Freedom Association or whether the requiring people to pay and donate money to something they don't want to support, whether that interferes with it. But it survived.
Michael Mulligan:And so we have this state of affairs where you could be forced to be in a union or professional association or faculty association. That's doing it, and you can imagine what might be going on. Even if you think, great, I love the NDP, I want to give them lots of money. What happens when your union starts giving money to the you know, anti-abortion group or the pro-abortion group, or how about some religious group you don't like or don't like, right? And so I think there is a real live issue about you know how far should we go in forcing people to be members of organizations that are doing things like this? Right, the argument for that concept that you might have to pay union dues even if you don't want to be part of the union the justification for that would be well, you're getting the benefit of being in the union and maybe a higher salary or more vacation or shorter hours or something. So we shouldn't allow you to just be a free rider by saying I don't want to pay my dues, I just want the longer vacation time or whatever the union managed to get in terms of a contract. But the rub comes with these sort of activities, right?
Michael Mulligan:And in this case, the members of the faculty association that didn't support this resolution which was just almost half of them, although not all of them brought the challenge. They were arguing that, when doing this section 104 analysis, their argument was well, there should be a narrow interpretation put on what this kind of association is permitted to do and whether resolutions are inconsistent with the society's purpose. Right, because their argument was hold on. This is like a society dealing with Simon Fraser University and negotiating contracts. What on earth is going on with this society passing resolutions, forming judgments about what's going on with Gaza and the Palestinians and so on, whereas the Faculty Association was arguing no, no, no, there should be a really broad interpretation of all of that, because the resolution did include various whereas clauses claiming things like a number of universities were damaged or destroyed by the fighting or arguing things of this sort. So they were saying there should be a really broad interpretation.
Michael Mulligan:And ultimately the judge looked at all that, looked at the reasons and looked at a number of cases, including cases where unions were doing various things right, and found that the proper interpretation of that Section 104 was to permit a broad interpretation rather than a restrictive approach or interpretation to it. You know, pointing out that, for example, some union might argue that well, we think the best way to get bigger contracts for our members is to make large donations to the NDP or something right, and say, well, you know, court shouldn't get into that, that's just going to be the way it is, and so well, at the end of the day, the court carefully pointed out that they were not determining whether this resolution was advisable or whether the contents or the preamble or views expressed were justified or right or any of those things. Ultimately, the judge concluded that a broad interpretation, a liberal interpretation, as it were, of that Section 104 is appropriate. And so, even though this collection of professors was none too happy with what passed, they are stuck with it and they can't get out Now.
Michael Mulligan:You know, as I said, that last Supreme Court of Canada case was from 1991. And this particular case wasn't a charter challenge. It was a challenge under the Societies Act to determine whether this was allowed. But this particular case wasn't a charter challenge. It was a challenge under the Societies Act to determine whether this was allowed. But this is the sort of decision with the kind of controversial resolution that may lead to revisiting of things. Right, you have a different fact pattern, you have a different result. Just like if somebody's union started donating to the anti or pro-abortion group, you might have a different analysis than what happened in 1991 on that split decision about NDP donations by the union. So that's the latest from the BC Supreme Court on the Gaza and Simon Fraser Faculty Association.
Adam Stirling:All right, we have two minutes remaining.
Michael Mulligan:So final case on the agenda is a case that comes out. Of. It deals with an issue of constructive dismissal, and the fact pattern involved a man who had been for a number of years the comptroller of a air conditioning company, and the air conditioning company wanted to no longer employ him. And a person is entitled, and an employer can do that, particularly in a non-unionized environment. But there's implied terms in employment contracts that would allow for either notice that you're being terminated without cause or payment in lieu of notice. And here the employer tried to go with the notice provision rather than payment in lieu of notice. And so they gave the comptroller a notice that he was going to be fired in eight months, but he was required to keep working, that he would be paid, he would get a letter of reference, but he'd be terminated at that point.
Michael Mulligan:Now, as you might imagine, that doesn't lead to the happiest of work circumstances. And shortly after the letter was delivered and this is almost unbelievable the person they hired to replace him. His name was Mr Bean, which of course causes both in terms of being countered for those of us that might watch a bit of popular culture. So you're being replaced by Mr Bean, and then, over a period of time, the company starts transferring responsibilities from this guy to Mr Bean, and so he's doing less and less of his job. And then the final straw is that they transfer him to an internal office, which also hilariously, in addition to being replaced I'm sure not hilariously for him being replaced by Mr Bean the interior office also had no air conditioning, which was a point of gripe. Given it was an air conditioning company, I guess it was additional unhappiness.
Michael Mulligan:So his argument was this amounted to a constructive dismissal and, as the judge pointed out, there are two kinds of constructive dismissal you can have a single thing that caused you to be constructively dismissed, or a collection of things that cumulatively add up to that. And here the argument was made and accepted that what went on was the transfer of duties to Mr Bean, combined with the interior office, with no air conditioning, all eventually added up to a constructive dismissal. And so the net result is that the employer wasn't able to have this fellow continuing to work there, and they were required ultimately to pay him for 15 months of notice, taking into account things including the fact that he was 63 years of age and had worked there for eight years when he was terminated, in 66 by the time he got to trial, and taking into account it's particularly hard for a senior person at that age potentially to get another job, and he hadn't succeeded despite trying. So that's the latest on Mr Bean no air conditioning and constructive dismissal.
Adam Stirling: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, we'll talk to you later. Quick break News is next.