Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
When Does Someone Become an Agent of the State?
Where do your constitutional protections begin and end? The dividing line between private actions and state authority forms the heart of a fascinating BC Court of Appeal decision that clarifies when ordinary citizens become "agents of the police."
The case centers on Loomis Courier employees who, at police direction, set aside suspicious packages for warrantless seizure during a drug investigation. Unlike previous cases involving independent security guards or school administrators, these employees were acting on specific police instructions. The Court established that the key test is whether individuals would have conducted themselves the same way "but for" police involvement—a crucial distinction that determines whether evidence can be excluded from criminal trials.
Privacy rights received further examination in a separate ruling that overturned a class action against the doctor rating website RateMDs.com. The Court determined that publicly available professional information—like a doctor's office address or phone number—doesn't carry a reasonable expectation of privacy protected under BC's Privacy Act. This distinction between truly private information and professional details available through other sources highlights the contextual nature of privacy protections in the digital age.
The Court also addressed the tension between professional standards and constitutional freedoms in a case involving a lawyer disciplined for sharing inappropriate "locker room talk" about a judge with a client. While not condoning the behavior, the ruling emphasized that regulatory bodies must balance conduct requirements against fundamental rights like freedom of expression—even when regulating professionals whose speech carries special responsibilities.
These rulings collectively illustrate how courts navigate the complex intersection of individual rights, professional obligations, and state authority. They remind us that understanding these boundaries is essential in a world where the line between private and public actions continues to blur. What private actions in your life might unexpectedly cross into constitutional territory?
Follow this link for a transcript of the show and links to the cases discussed.
Well, first of all, here's why that matters, right? This issue of whether somebody's an agent of the police. It matters because uh you have constitutional protections for various things, including privacy, right? Most people are aware of that, right? The police can't just come in and rummage around in your home and see what they find, right? Without a warrant or some reason to do that. But that is a protection against actions of the state, like the police, for example. It doesn't protect you from other people. So let's say, for example, I don't know, your nosy neighbor on their own accord decides to sneak into your house and spot some drugs in your on your bedroom and calls the police. Well, it may be that the neighbor did something wrong, even illegal, but that doesn't necessarily mean that you're going to get any remedy for that in your eventual trial for possessing the drugs. Uh, because you're protected against actions of the state, not actions of other people. Interesting. And so the the rub really comes when it's sort of ambiguous about who's doing what and why. Okay? So uh this particular case uh involved the issue of whether these employees of the Loomis Courier Company were in fact agents of the RCMP uh when they were uh setting aside packages uh in the course of a drug investigation. And the whole thing started when some, I guess, uh sharp-eyed uh Canada Border Service Agency employees over at the Vancouver airport noticed some packages uh which they investigated. They were being shipped to New Zealand, um, and they opened them, as I should say, by the way, you're permitted to do, right? It's a different thing when the border people are doing uh examinations of things. Um and they found inside a whole bunch of methamphetamine and interestingly a fingerprint matching the accused. So that's what they found. And the border people notified the RCMP. So the RCMP did investigations, as they're apt to do, um, and they determined that these two packages had been shipped via a Loomis Express location in Nanaimo. Uh and the RCMP went and made some inquiries uh and spoke to employees of the uh Loomis uh facility. Now, what they were told to do was uh a little ambiguous, or at least there was a disagreement between what the police alleged and what the employees testified they were told to do. Uh the employees testified that the police told them to sort of you know act natural if the person came back in. It was another person, not the accused, who dropped the things off and was using the name of a turned out to be a fictitious company. Uh, but they were told, look, if you uh anymore this person comes back in, uh, according to the employees, they were told to, you know, act natural, take the package as usual, uh, try to take some pictures of them if you can do that without them noticing, uh, and set aside the packages and let us know. Right? The police were sort of claimed they didn't quite provide all that instruction, but that's what the employees at the Loomis place said, and the judge accepted what the employees said in preference to what the police uh said. In any case, this fellow who shipped the first package, uh not the accused, showed up again, and the employees did what they said they were told to do. They took the package as usual, uh, they made some uh discreet uh observations, including this person going and getting in a vehicle that was registered to the appellant. Okay, so another connection to this uh person who was charged, uh, and then phoned the police and set aside the package. Uh and the police showed up uh the next day, I think, and seized the package without a warrant. And so the issue was, and then there were a couple of other packages, the same thing happened, and they were determined eventually to contain all kinds of things, fentanyl, cocaine, this and that, I guess trying to ship these things over to New Zeal New Zealand. And so the issue became is there a problem with the employees without a warrant taking these packages, setting them aside, and giving them to the police, and the police taking them without a warrant. And at the trial, the judge found that, oh no, there's nothing wrong with that. Uh that that's fine. Uh you know, that these people the the uh employees of the Loomis weren't really agents, and that's the issue that went to the Court of Appeal. The Court of Appeal disagreed, and they looked at three previous cases uh that are kind of the seminal cases on that issue of is somebody an agent for this sort of a purpose. And the first of those cases is a Supreme Court of Canada case from a few years ago, and that case involved a uh private security guard at a bus station who smelled some uh what he thought to be marijuana from a locker, and he decided on his own to open up the locker uh and see what was in there. Uh and he found indeed a package with marijuana in it, uh back when that was illegal, I guess, right? Um, but put it back in the locker and then uh phoned the police uh and uh the uh police uh eventually uh got authorization and seized the contents of the locker. The issue was was that security guard sort of an agent? And the answer from the Supreme Court of Canada was no. He wasn't. He did those things completely on his own. Uh and so the person didn't have any basis to complain about his constitutional rights being violated by the security guard. And the same answer came in another case that was a little closer to the line, a case involving a school principal. I think it was junior high principal. And the junior high principal um got a tip that uh one of the kids in his school was selling marijuana, uh, and at the school dance, the vice the vice principal called the kid into the office, phoned the police, told the police to come on down here. The police uh just before the police showed up, the uh vice principal said, I'm gonna search you for the drugs. Police showed up, sat down, didn't say anything to the vice principal or the kid. Uh, and the vice principal searched the kid, and lo and behold, he had marijuana and wound up being charged with that. Uh and again, the finding was that wasn't an agent, that's just a vice principal doing something. Police didn't direct him or ask him to do that. The other side of the equation came in an example or came in a case involving uh a man uh who the uh police suspected of committing a crime but wanted DNA evidence to try to tie him to it. And he happened to be in custody for something else, and the police found out that the man needed to get dental work done while he was in jail. And so the police contacted the dental people, yes, the dentist and the dental assistant, and said, Yeah, we want his DNA. And so when you're treating him, pretend just do it as normal, but we want you setting aside, I guess, you know, blood or things from saliva, whatever from the dental procedure, so we can come and get them. And the dentist and the assistant did that. And so that came and got seized, and eventually the conclusion was, yeah, that is exactly what a state agent is. Those people weren't just doing that on their own accord. Uh and the proper test, as the Court of Appeal pointed out, is whether the people involved would have conducted themselves in the way they did but for the involvement of the police. And in that example of the um dentist, the dental assistant, no, they weren't going to be setting aside carefully the you know saliva samples or whatever from this man so the police could seize them. Like in those other cases, the people acted independently. And so the Court of Appeal found that look, the uh uh what the uh Loomis employees did was exactly that. The judge accepted what the employees said the police told them to do, in preference to what the police alleged, that they were told to act natural, set the things aside, take pictures if you could, and report it to the police. And so on that basis, on that proper test of whether uh the uh people would have done what they did but for the invention the intervention of the police, that could amount to them being an agent of the police. And so on that basis, a new trial's been ordered, uh, and uh a judge at the new trial will need to confirm that, yeah, that's the case, and then if so, what remedy there would be. Uh and so that's the uh Loomis case involving agents, and that's why it very much matters whether somebody's doing something on their own or whether they're doing it because the police asked them to, or indeed, even if they didn't expressly ask them to, would they have done it but for the police involvement? Uh that's the latest from the uh Court of Appeal.
AdamStirling:Michael Mulligan defense will continue right after this. Legally speaking, we continue our conversation with Michael Mulligan, Mulligan of Fort. Michael Act and certificate Dr. Rate with overturned on appeal. How did this happen?
MichaelMulligan:Well, it's an interesting case. It's a BC case, of course, uh, and it involves a uh attempt to sue uh a website that's called ratemd.com ratemds.com. And that site apparently contains um a place where people can go and provide ratings for doctors and other medical professionals, uh, and the site would have uh reviews and then rankings against other medical professionals in the same location. I guess amusingly all of that assumes, of course, you have a choice of a variety of medical professionals in the location you're going to be in, as opposed to, I guess, the DC reality, which is you're going to be absolutely thrilled to get anyone you can possibly get to help you, no matter what their rating is on ratemds.com. But leaving that aside, the cla the claim was brought uh alleging violations of the Privacy Act. Uh and as class actions do, there's a representative plaintiff, right? And then they would set out pleadings as to why they say they have a cause of action. And you would need to get the thing certified as a class action if you want it to operate on behalf of like a group of people rather than just that person. Um and so that's what uh occurred in this case, and the claim is brought by a doctor alleging that uh her privacy interests were breached by having these reviews up on the website. Uh, and she relied upon two different claims under the Privacy Act in British Columbia. Uh one is that you have a there's a uh tort uh without proof of damage is interesting, so it creates this statutory tort or cause of action on the basis that uh your privacy has been breached. But what what does that mean? And of course we have to look at uh some of the case laws surrounding it. Um and it's not uh an uh unlimited thing. And previous case laws said, look, that section of the Privacy Act, you have to look at uh the nature and degree of privacy that is reasonable in the circumstances. Uh and so there has to be some assessment of you know what kind of information is this, right? Uh and the Court of Appeal pointed out this wasn't a claim being brought on the basis of some specific review, like some review saying, hey, you posted my home address or a picture of me through my bedroom window with a telephoto lens or something as part of your comment on my medical skills. Uh instead, it was a claim based on look, this generally anything on there, this information about me, I have a privacy interest in it. And the information amounted to things like the telephone number for the doctor, uh a link to their website, uh, or the uh you know address for their office, for example. Um and for that kind of information, as the Court of Appeal pointed out, it's all readily available. If you want to get information about a profession professional's you know office address or contact information, you can easily use the internet and go to, for example, the you know, professional regulatory body to determine you know what is the contact information for that person, even if they don't have a website or phone number, which would be hard to imagine. But uh so the Court of Appeal found that look, the this that kind of information in a broad sense, it's not analysis on particular thing. Yeah, there could be some review that has something that's out of bounds, but the one-off particular thing isn't something you could have a class action about. You know what I mean? Like if some particular doctor said, hey, some deranged patient took your picture of me through my bedroom window with a telephoto lens and posted it on some site, yeah, that doctor might have a claim under the Privacy Act, probably would. Uh, but that doesn't mean that every doctor for this kind of information has a claim of that kind. And so the Court of Appeal found, and this is the test, that it it's plain and obvious uh that the plaintiff's claim could not succeed. And if it meets that plain and obvious test, and what they look at is they look at like the pleadings. Like when you're suing somebody, you have to set out why are you suing them, what are you claiming happened, and what's your legal basis for saying you get anything for that. Uh and when you're analyzing it in that way, you you just assume all the things the person is saying is true, like in their claim. Like, hey, you say that my phone number's on there, and you say that my address is on there, and you say there's a review of me on there. But even assuming all that's true, there just isn't a privacy interest in that kind of information, the information that was there. And then that brought the Court of Appeal to the next part of it, which is that there's a second section of this privacy act that can also make it, makes it a statutory tort to use the names of people for commercial purposes. Uh, and so there had to be analysis of well, what is exactly that mean? Um and so the Court of Appeal did their analysis interestingly, looking at things including you know, charter jurisprudence and also looking at uh a common law tort, like a tort that exists in places without even the Privacy Act. Uh and there is a common law tort referred to as the misappropriation of personality. And so that would be, for example, using a person's name, likeness, or voice for the purpose of advertising or promoting goods or services, or otherwise for the user's own gain without consent. So, you know, let's say somebody takes AI and creates a copy of your voice, and it's, you know, hi, I'm Adam Sterling, and this is my absolute favorite uh hemorrhoid medication or something, you should definitely load up on it. It's a great deal. That would be prohibited, uh, that would be a statutory tort in addition to uh potentially being uh actionable under the Privacy Act. Uh and so the Court of Appeal used that analysis, that anal that what that common law tort is to inform what is meant by the language in the Privacy Act. Uh and they correctly pointed out, you know, the uh rating site on the website wasn't trying to sell a product. Uh they weren't uh sort of using the person's like list saying, you know, Dr. So-and-so says this is a great product, uh you should buy it. Um and you know, they did acknowledge that look, you know, there may be some financial motivation for having the website, but just like it was sort of closer to, I think, for example, like the phone book, when people use the phone book, it'd be sort of, yeah, I've listed your name and address of the in the doctor section of the phone book. Uh, and so, yes, I I guess there is some financial incentive to have the phone book, but that's a different thing from purporting to use your likelist to endorse something or to sell a product. Um, and so just like that, on that first basis, uh, the uh Court of Appeal concluded, no, that's just not what's meant by utilizing somebody's name uh or names of class members for a commercial purpose. Um and so uh the uh once again, like on that first uh base of the claim, the Court of Appeal found that it was plain and obvious that this could not succeed. Uh and so on that basis uh they overturned the uh trial or the original judge's decision to certify the class action. Uh and so there will be no uh uh claim going forward to try to shut down the doctor's uh rating site, assuming people are using that, rather than desperately find meadoctor.com or something of that, which perhaps would be uh more popular these days. And so that's the latest from the Court of Appeal on the doctor rating site and uh privacy.
AdamStirling:I want to make sure I read this correctly, telling a client about rumors of a guided technical activity in university with over targeted test on appeal for failing to consider right to free expression. That's a lot there. There is a whole lot bound up in that.
MichaelMulligan:Uh and so uh uh here's the starting point of it. The uh law society, like most professional uh organizations, have rules surrounding the conduct of members of the profession. Uh and so there are a variety of things in the uh um rules that apply to lawyers. Uh and they would include things like uh not using abusive, offensive, or otherwise uh you know language that would be to communicate with others that would be unprofessional, for example, right? And there would be an obligation to uh you know treat uh courts uh and uh members of the judiciary with candor and fairness, things like that. Uh and so uh the the rub can come, I guess, a little bit when you have communication that's not directly in that forum, but pretty close to it. Uh and here you've got you had a circumstance where a lawyer uh was apparently uh sharing with a client uh rumors uh about sexual activity of a judicial official uh uh while in university. And it may it sounds like it may well have been just uh kind of gossip, it may even have been completely untrue. The client of the lawyer felt uncomfortable that this kind of talk was going on. The lawyer was engaging in what was described described by the lawyer's locker room talk. Uh and uh so the client complained to the law society about uh what they felt was inappropriate communication by their lawyer about the sexual activity alleged of the judge, I guess, who was involved in the case.
AdamStirling:Interesting.
MichaelMulligan:Uh and the court and the law society uh conducted a uh uh review of that, and they had a hearing panel where they sort out whether somebody is engaged in professional misconduct. And the hearing panel, uh it and in fact the the lawyer acknowledged he said those things, the lawyer acknowledged this was locker room talk, included it was ill-advised, uh, and the uh uh panel of the law society determined that it amounted to professional misconduct uh and fined the lawyer $7,500 uh for doing that. Uh well the uh flash forward uh to uh just a few days ago when the case wound up in the Court of Appeal, and there's the avenue of appeal from a law society disciplinary decision is to the Court of Appeal in BC. Uh and the uh uh basis for the appeal, and I should say the law society, upon having this pointed out to them by counsel for the uh uh lawyer who had been fined, uh, agreed that what the panel had done was wrong in that the panel had failed to consider uh the freedom of expression constitutional rights of the lawyer. And that is not to say that that kind of communication would necessarily be permissible. It may not be, right? It may be in violation of the uh strictures of about unprofessional communication by the the lawyer, but in order to make that determination, it's necessary to uh w weigh up that professional obligation in the uh context of the fact that lawyers like everyone else have a right to free expression. Uh and so when determining whether that sort of commentary, locker room commentary about sexual rumors about the judge uh was a marked they have to determine whether that was a marked departure from the conduct expected of a lawyer, and in so doing, they need to bear in mind that the lawyer does, like everyone else, have a constitutional right to freedom of expression. Uh and so the panel just didn't do that. Um, they just didn't follow a previous decision that uh spoke about that very issue uh in the context of a lawyer who wrote a uh uh inappropriate vitriolic letter to a judge, I guess, following some case. Uh and so back it goes. Uh, and there will need to be a new decision by a new uh tribunal at the law society, and they will need to consider freedom of expression whether in determining whether this kind of communication amounted to professional misconduct. So that's the latest out of the Court of Appeal, uh, and why lawyers really ought not to be uh uh spreading rumors of that uh sort for I suppose a variety of reasons, quite apart from whatever they might be constitutionally permitted to do. So that's the latest from the Court of Appeal and the uh Law Society in BC.
AdamStirling:Michael Mulligan with Mulligan Defense Lawyers Legally Speaking during the second half of our second hour every Thursday. Thank you so much, Michael. Pleasure is always thanks so much. Always great to be here. All right, we'll take a quick break back after this.