Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
When Free Expression Ends And Misconduct Begins At A Canadian University
Courtrooms, campus corridors, mountain slopes, and border tarmacs: we connect them through three rulings that change how you navigate rights, rules, and risk. We start with a Vancouver Island University protest case where banners, ladders, and megaphones escalated into disruptions of exams. The student fought a two‑year suspension, arguing misidentification, unfair process, and—most ambitiously—freedom of expression under the Charter. We walk through why the court said no, revisiting Dolphin Delivery and the baseline that the Charter restrains government, not institutions acting independently. In BC, universities aren’t automatically treated as government actors, so Charter arguments usually fail unless legislation compels the action. The practical takeaway is clear: campus discipline lives under university policy and administrative law, not constitutional guarantees.
Then we climb into the backcountry with a Wildlife Act prosecution that turned on what “full curl thinhorn ram” actually means. Is it age, horn length, or both? At trial, experts wrangled over true versus false annuli, and the hunter was convicted. On appeal, the court read the regulation’s “or” as a real alternative: either eight years as proven by annuli or a horn tip that extends beyond the nose bridge plane when viewed squarely from the side. That interpretation aligns with field reality, where counting ridges through binoculars is guesswork. For hunters, this sets a safer path: document the side view and horn tip position to meet the length criterion without winning a lab fight over annuli.
We land with a hard deadline at the border. A sniffer dog allegedly damaged a multi‑million‑dollar helicopter during a customs search. The owner complained immediately and filed a claim, but the later lawsuit missed a little‑known limit: the Customs Act requires claims within three months. The court enforced the clock and dismissed the case, even while acknowledging the fairness concerns. If border searches damage your property, act fast—document everything, get estimates, and file in the correct court before the window slams shut.
Want practical law without the jargon? Press play for a grounded guide to: when free expression stops at the campus gate, how one word in a regulation can flip a conviction, and why a hidden limitation period can decide your whole case. If this helped you spot risks early, follow the show, share it with a friend, and leave a quick review telling us which case hit home.
Follow this link for a transcript of the show and links to the cases discussed.
Vancouver Island University for quote expressive conduct in support of Palestinian rights, close quote, dismissed. What happened?
SPEAKER_02:Well, first of all, that's some good judicial euphemism for uh the conduct in in question here. This uh person the case involves was a student at Vancouver Island University, uh, and she was indeed engaged in expressive conduct in support of Palestinian rights, but the conduct in question involved various things ranging from climbing up on the roof with a ladder, duct taping banners up, uh, putting graffiti on doors with markers, accusing people of racism. Um bursting into a building during tests with megaphones and like disrupting uh examinations, causing people to be cowering in their offices, this sort of thing. So clearly expressive, but uh it would appear on the uh description of it uh clearly not permissible conduct. Um and the uh university uh conducted a hearing into what uh occurred. Uh the student in question, on reading this this uh judicial review decision offered up various weak sauce excuses for things claiming, for example, on there were video recordings of the conduct in which other people identified her as being one of the people uh doing these things. She gave answers like, I do not recall that, me carrying a ladder, or I do not personally own the clothing depicted in that video. Answers of this sort, which were of course not persuasive uh for anyone in terms of persuading them that it wasn't her engaged in this activity. And so the university ultimately had a hearing and then a review of that hearing and settled on uh discipline in the form of a two-year suspension from being able to attend the university. And that's what prompted this student to engage in this judicial review, challenging the suspension uh in court. And uh at that hearing, she made various arguments, including arguments about uh, you know, whether the hearing was fair and whether you know they reasonably concluded it was her, uh, none of which uh got any traction really at all, not surprisingly, I don't think, on the uh judgment. Uh but one of the interesting arguments she made here was a charter argument. Uh and so she argued on the judicial review that the university had failed to take into account her charter race to freedom of expression, right? Her claim that she was engaged in expressive conduct. And that raises uh an important and interesting legal issue about just who does the charter apply to. Um, and in the early days when the charter first came in, that was a genuinely large question. Um, and there is a seminal case uh about that issue that the Supreme Court of Canada decided all the way back in 1986. Uh, and incidentally, it involved uh a delivery company uh in British Columbia. There was a uh complex fact pattern, but there was a labor dispute and protests and picketing and so on. Um and one of the claims made uh was that uh the charter, freedom of expression, had application here in terms of whether what went on was permissible or not. The company in DC that was incidentally connected with it is now in the name of the judgment, dolphin delivery. They're still around. Uh, and as an example of, you know, sort of uh uh lawyers may view the world a little differently. I I do still from time to time see a dolphin delivery truck go by, and it causes me to smile thinking of the Supreme Court of Canada case. The conclusion uh that the Supreme Court of Canada reached is that the charter only applies to restrict government conduct. It does not apply to companies, private individuals, or anything else, right? You know, you don't have uh the charter doesn't provide you with uh, you know, freedom of expression to, you know, yell things in a bank or something, right? The bank could be quite permitted to tell you, sorry, get out. You're not permitted to yell out your whatever political slogan in the bank. Now, universities are an interesting case, right? Because, you know, in Canada, many universities have some kind of government connection to them, funding or or otherwise. And so the student here was arguing that, well, the university was really engaged in some what amounted to government activity suspending her because there's the University Act that sets out various powers. Uh, but that did not get traction here, and that's in keeping with the law in British Columbia generally as it applies to universities. Um and the reason that the law is the way it is is that generally universities are acting independent of government. They're supposed to have academic freedom. The government's not in there, you know, writing up course programs and determining how they're operating on that level. Uh there are circumstances, however, and each case would have to be looked at individually. You could have some government action that was implemented through legislation, you know, perhaps mandating the university do or not do something, where you might be able to make out an argument that the charter would have some application to it. So it's not black and white. Uh, and there have been different decisions in different provinces where they've looked at, for example, how exactly does the legislation work around universities? Like there's a little bit of a difference between Alberta and BC, for example. But in BC, the general rule uh is that um university actions are not government actions. And so the starting point is going to be that you don't have some charter right to freedom of expression at a university because it's a university, or that universities must have policies in place that somehow conform with charter uh values or freedom of expression. That is not a requirement. Um, and so uh that is again what was found in this case uh that the Vancouver Island University was not engaged in sort of some government conduct when it suspended this woman uh for the behavior that she engaged in. And so as a result, uh her uh uh uh application for judicial review was dismissed both on the basis of the arguments about, you know, did I have a fair hearing or did you correctly identify me uh as the uh you know person carrying the ladder or felt pinning the doors uh or whatever. I think the uh there's a little ambiguity there. Uh the people involved were wearing, what is it, keep Kifas? My pretty pronouncing that, the headscarf, Palestinian headscarf around their face to obscure their identity. Uh, but others involved were able to identify her and the argument that I do not own the clothing depicted or I do not remember carrying the ladder or something of that sort wasn't enough to uh raise a doubt uh for the discipline or on the judicial review. So that's the latest in BC Supreme Court on judicial review, charters, universities, and when you can and cannot claim some constitutional right to freedom of expression, it goes all the way back to dolphins delivery, which is a dial for a highway uh way of considering.
Adam Stirling:Michael Bolsonaro defense, first after the Michael Ball, defense or not, Michael help us understand.
SPEAKER_02:Well, I must say, this is a prosecution under the Wildlife Act in B.C. And some of these things can really be no joke in the sense that the penalties imposed are very large in relation to other penalties that might be imposed in court, often fines running in many, many thousands of dollars. And uh we actually talked about this case back when it was at trial. Um, and the case involved uh a fellow who was a hunter, uh, and uh he was somebody who in fact had a uh license to go and hunt a quote massy ram. Uh and uh the uh license permitted him to hunt the ram uh if it is, quote, a full curl thin horn ram mountain sheep, close quote. Now, the challenge here, what happened is the man hunted the ram, no doubt about that. And there's a requirement that when you do hunt and kill a ram, you bring it in to be inspected, and the man dutifully brought it in for an inspection after he hunted it. And the challenge is this it's the definition of what that thing is. And here's what it says in the regulations what a full curl thin horn ram mountain sheep means. Any thin horn ram mountain sheep that has attained the age of eight years, as evidenced by true horn annually, as determined by the regional manager or designate, here's an important word, or whose horn tip, when viewed squarely from the side at right angles to the sagatal plane of the skull, extends dorsally beyond the nose bridge plane. So it sounds like a horn that curls all the way around is like sticking out past its nose. That's how I would read that. Now, the challenge, of course, is that there are not a whole lot of rams that are carrying ID around. And so what you've got is some hunter who's looking through binoculars trying to count up horn annually, which are like ridges on the horn. And the idea there is that every year there'd be another ridge of that kind on the horn. And if you could count them up, you'd kind of like aging how old is a tree by counting the rings, you could kind of count these things up and then determine, oh yeah, look at that. There are nine of them, right? That must be nine. Great. The sheet doesn't have it, the ram doesn't have any ID, but you would then think, well, great, this is the thin worm ram mounted sheet that I've got a license for. Bang. Trouble is there can be things that are false annoy, like some little bumper ridge, and somebody's trying to measure this using binoculars, right? So at trial, the judge looked at uh report and evidence about whether the anulli were real annoying or false anulli, um, and ultimately concluded that he was satisfied beyond all reasonable doubt that the sheep wasn't eight years old, and so convicted the man. Now hence the appeal. The issue of the appeal is what does that definition mean? Right? Because you've got that thing meaning a thing that's attained the age of eight years, as evidenced by true horn and newly as determined by the regional manager or delegate, comma, or whose horn tip when viewed squarely from the side angle, right, comes out farther. And the applicant the way the judge, the trial judge originally interpreted that is well, these are just two different ways to try to figure out if the Ram mountain sheep is eight years old or not. And I think in this case clue it wasn't eight, and so convicted him. But fast forward to the appeal decision that just came out in BC, from BC Supreme Court judge, and the judge said, no, that's not what that means. When you read that definition, there are two possibilities. One, you could have a sh a Ram, uh Ram mountain sheep, which has attained the age of eight years, as by counting up the anulli, or whose horn tip viewed squarely comes out far enough. And so even if you had one which was, for example, seven, if it just was really prolific, I guess, in growing its horn and the horn managed to get out past its nose, it counts. Uh and I must say, from uh that looks like a reasonable interpretation of it, and also, of course, in a meaningful way, when you're looking at this in the actual real world, right? Somebody has got to try to apply this thing, right? They've gone and got themselves a license, they're out there, they're counting things up, they're obviously being careful to avoid massive fines, right?
SPEAKER_01:Yeah.
SPEAKER_02:Uh, but this case at trial, you had you know experts who were arguing and disagreeing about counting up whether the annually were real or false ones. I think to complicate matters for reasons unknown. I think the horns might have fallen off the skull while the examination was going on. So you can just imagine what that looks like. But you know, when you have a circumstance where people who are very well informed, who are looking at the thing under, you know, probably a magnifying glass or something, are coming to different conclusions about whether the annual are real or false, and are there eight of them or nine of them or seven of them, and is this thing eight or not, right? You can well imagine that's a very, very difficult standard to uh apply in the real world where somebody's out there with binoculars or a rifle scope trying to make sure they're complying with their license. And so the definition, uh the way this has now been interpreted by the uh BC Supreme Court is that if you can make a determination that the uh uh horns come out far enough, the horn tip, you then no longer need to worry about was that a newly false or real, or could that thing have been seven or nine? Uh, if the horn gets out there far enough in relation to the nose bridge plane, uh, that counts too. And so the uh result for this man is his conviction was overturned. Um it's not over yet, though. It's been uh ordered back for a new trial in provincial court because there will now have to be some consideration about just exactly how far did this horn come out in relation to the nose, now given, of course, uh fact pattern where for reasons unknown, the horn seems to have fallen off the horn seemed to have fallen off the skull. So we'll have to wait and see whether the crown wants to retry this thing uh again to try to prove beyond a reasonable doubt how far out the horns went, but they were still attached to the skull, assuming that thing still exists. Uh going forward, uh at least, it will mean that uh people who are um hunting uh will be able to look at something uh that may be more easily ascertained from a distance uh to avoid uh winding up with uh years of litigation and the possibility of massive fines. So that's the latest from the Wildlife Act in BC and what it means to be a full curl thinhorn ram mountain sheep.
Adam Stirling:Good to remember. Number three, it says here claim for damage to a helicopter caused by a border services search or dog search dismissed due to an extremely short limitation period.
SPEAKER_02:This is another one I think people should be aware of. I mean, not many of us are flying helicopters around, but there's some important principles here. The fact pattern involved a uh it was a company uh that owned a helicopter, and the principal of the uh company was flying the helicopter. Um and so the uh fellow who was the principal of this company that owned the helicopter uh used it to fly uh himself and his daughter down to, I think it was a basketball tournament in Washington state, uh, and then flew back after the basketball tournament uh and dutifully landed where one is required to land such a thing to have it uh uh clear customs coming back into Canada. And so he did that. And the customs inspector came out and border guard and was asking him questions about where he was going, what he was doing, and did he have anything uh to declare, to which he said something to the effect of, well, just my daughter's bag of basketball equipment. Um and I guess being unsatisfied with that um answer, the Border Services Guard decided to employ a dog uh to go and start searching the helicopter, which was apparently valued at two and a half million dollars. Um and the dog was let loose in the helicopter um and uh began rummaging around in there in a way that caused the man immediately, the old the old principal who owned the helicopter, effectively, um, immediate concern about damage. Um and uh at the uh while the search was going on, he expressed his concern that uh there was delicate uh material wiring and so on up there, the dashboard area, the dogs digging around. And he asked if there are some less destructive alternative that could be employed to conduct the search. The border guard refused, allowed the dog to continue, um, and according to the man, caused all kinds of damage to the uh helicopter, including its control panel and wiring, and um, I think some of the seats and so on got uh wrecked by the dog. The man complained about it and said, Look, you've wrecked my helicopter, um, to which he was uh uh told that he could file a compensation uh for the damages, which he did that day. Uh so he filled that out and sent it in. Uh, and then a few weeks later, got a response from the Canada Border Services Agency who came back and said, Sorry, we're denying your claim. Uh, we're not persuaded that this damage was caused by our dog, despite the fact that the guy brought it up immediately, spoke to the person about it at the time, got the form, filled it out. They just said, and you know, I guess that's the nature of a large organization like that, sorry, no. Um the man then, of course, given the you know value of the helicopter and the damage caused, he decided to pursue it. Um and he originally did so by um about four months after the fact, after he got this response back denying his uh claim for damages. He first of all filled out uh uh statement of claim, trying to do it, I think, in small claims court under his name, and then realized, nope, you can't actually do that. You can't sue the federal government in British Columbia Small Claims Court. Um, and the background of that is that the starting point in Canada is there was crown immunity. Uh and it means it meant that, at least in the past, you just couldn't sue the crown at all. Right? They're considered sort of infallible. You can't go to court and get money from the crown at all. It's only by virtue of legislative changes um that um you can now sue the crown at all. But in terms of suing the federal crown, which is what this would amount to, you can't do that in provincial court. You've got to do it elsewhere. And so this man uh then uh started the claim in the BC Supreme Court uh and did it properly in terms of the name of the helicopter company. He did that, I think, about five months after this event. All of which brings us to this decision uh that just got released, um, which has to do with this. Uh I think most people would have no idea this exists, but it does. Um, under the Customs Act, there is a very, very short limitation period if you wish to sue uh over things like damage done by border guards conducting searches. You have three months to do that. Uh there are similar hidden, virtually hidden limitation periods that are shorter than usual for other things, like suing a municipality, like somebody slips and falls on a you know sidewalk that wasn't properly cleared or whatnot. But there's one hidden in the Customs Act. And the man said, Well, nobody told me about that. You know, he got this thing going quite promptly, filed his initial claim that day, right? Uh, and then had a claim filed himself five, you know, just a few months later. This thing was filed five months later by the properly in the Supreme Court under the name of the company. But um it led to the federal government bringing an application to dismiss the claim. Um, and the judge went through and analyzed all the law regarding that. And despite the fact the man had claimed, for example, that uh what had gone on here was like a misfeasance of public office or like activity that was like outside of what's permitted under the Customs Act, who's claiming they sort of engaged in improper conduct in terms of how they did this. That didn't get traction. And, you know, the judge was obviously sympathetic uh to what happened to the man. But the way it works is that your limitation period would run from the point in time you've got all the information you would need to sort of advance your claim. And that would have been instant, right? The guy was standing there, saw the damage caused by the dog, filled out his claim right away. And so he had all the information on the day when he theoretically if he was aware of the Customs Act short tur short fuse limitation period, he could have got going and he didn't. And so the net result was his claim's been dismissed. The judge, I think being sympathetic to the man, declined to order costs against him, which is otherwise what he would have been on the hook for. He would have hit his helicopter wound by the dog and you would have owed the government money for having brought this claim outside of the three month limitation period. The judge found that that would not be appropriate and so didn't order costs, but still out of luck for the helicopter. So for listeners, even if you're not in a helicopter, if you've got some damage done to your vehicle as a result of a border search, get on it because if you don't get a claim filed within three months like this man, you may just be out of luck. So that's latest on the Customs Act and a really short limitation period you need to know about is some if some of your property gets damaged uh in a search coming back into Canada.
Adam Stirling:Michael Mulligan with Legally Speaking, second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right quick break news next