British Columbia And Alberta Clash On How To Regulate Lawyers

Two neighbouring provinces are running a live experiment on professional regulation, and the results could shape how Canadians think about law societies, licensing bodies, and government power. We walk through British Columbia’s Legal Professions Act changes, including the shift in what the Law Society is being asked to prioritize, and how that ties into disputes over mandatory cultural competency and sensitivity training for lawyers.

Then we cross into Alberta, where Bill 13, the Regulated Professions Neutrality Act, lands like a hard reset. The law sets out a “neutrality” framework that rejects assigning privilege or disadvantage based on enumerated personal characteristics or beliefs, and it specifically blocks regulators from mandating training on topics like cultural competency, unconscious bias, diversity, equity, and inclusion. Put beside BC’s approach, it’s a stark policy split, and it raises a bigger question: what happens to independent regulation when politics starts writing the regulator’s mission?

We also shift to criminal law and a case with an ordinary trigger and an extraordinary outcome. A dispute over an e-bike, a shove, a fall, and a death days later led to a manslaughter conviction, with the key issue being defence of property under Criminal Code section 35, not self-defence. We unpack the “reasonable in the circumstances” standard, the modified objective test, and why appeals courts usually won’t redo a trial judge’s judgment call.

If you care about legal rights, regulatory independence, Canadian criminal law, and where “reasonable force” really sits in practice, this one will stay with you. Subscribe, share the episode, and leave a review, then tell us: should governments ever steer professional regulators this directly?

Follow this link for a transcript of the show and links to the cases discussed. 

Transcript

BC Rewrites Lawyer Regulation

Michael Mulligan 0:24

Yeah, this is really interesting, and it's such a stark contrast between how British Columbia is dealing with this issue and how right next door Alberta is dealing with this issue. And it ties in with one of the things we talked about uh last week was the uh the uh claim being brought by a lawyer against the Law Society uh alleging that he was defamed by the Law Society, suggesting that he was racist as a result of bringing a motion to amend the Law Society's mandatory uh cultural competency sensitivity training that they've required all lawyers to take in British Columbia. And so uh all of that uh ties in with this uh the BCNDP's uh effort to amend the legislation dealing with the regulation of lawyers in British Columbia, whereby they've in this Legal Professions Act, they've added an S on the end, and they've removed the uh previous provision, which was that the law society should be upholding and protecting the legal rights and freedoms of all people in British Columbia, and replaced it with a bunch of things which uh are consistent with uh the objectives of the uh NDP and BC, including supporting reconciliation with indigenous people and implementing the United Nations Declaration on the Rights of Indigenous People and C here, identifying removing or preventing barriers to the practice of law in British Columbia that have disproportionate impacts on indigenous persons and other persons belonging to groups that are underrepresented in the practice of law. So that's what the NDP is implementing in BC. Now, right across the border, uh just this week, uh the uh uh uh a completely different approach was implemented in Alberta by the uh coming into force of an act there, Bill 13, which is entitled The Regulated Professions Neutrality Act. Um and this piece of legislation affects not only the Alberta Law Society, but other regulated professions there, you know, doctors and uh and so on. Uh and it begins with the number of uh preamble as legislation sometimes does, and it says there, whereas it's recognized in Alberta, on we go, all persons are equal in dignity and should not be arbitrarily assigned value or blame based on their personal identified characteristics or beliefs. Uh and then it specifies later in the legislation what the sort of uh uh personal characteristics or beliefs would include, and that includes they listed here, race, color, ancestry, national or ethnic origin, religious beliefs, political beliefs, conscious beliefs, sex, sexual orientation, or gender identity. Uh and the legislation then goes on to uh prohibit uh regulators of uh professions, including lawyers, doctors, and so on, uh, from doing anything uh with respect to those personal enumerated personal characteristics uh that would uh uh uh have uh treat people differently based on those sorts of things. Uh and it would prohibit uh regulations uh which would uh, for example, the BC, uh the NDP here is uh request to require the law society to affirmatively do those things that I read out at the beginning. All of that in Alberta, as of this week, would be unlawful. Um and uh Alberta has concluded that if a regulator were to uh provide a privilege or a disadvantage to anyone based in any of those enumerated personal characteristics, that would be unlawful. They're not permitted to do that. Uh they would also be prohibited from, in addition to being prohibited from making rules which would, you know, for example, benefit somebody based on their long list of things, race, color, ancestry, ethnic origin, sex, sexual orientation, in BC, uh the law society would be required to do the opposite, which would be they are required to identify and uh remove barriers and uh do things which would have disproportionately infected various people that the NDP has listed, those the sort of characteristics which in Alberta uh will no longer be permitted to be factors when regulators are making rules. Also, uh going right to the issue that we talked about last week of that mandatory indigenous cultural sensitivity training, the the law society in BC, I think it's a six-hour course they've required all lawyers to take. Uh the Alberta legislation that's just come in, Bill 13, will prohibit uh education uh or training being mandatorily required by any of these regulatories, including regulatory bodies, to do with issues including cultural competency, unconscious bias, diversity, equity, or inclusion, and any other matters specified in the regulations. And so, whereas in British Columbia, uh the uh uh government here has decided to uh inject their political beliefs into the regulation of uh lawyers in the province in one direction, requiring various things to be uh done and implemented by the regulator. In Alberta, the government there uh has introduced legislation which would prohibit exactly what is being mandated uh in BC. And so it's just really interesting just to see the complete divergence in terms of how that's being dealt with. Uh and I would say this, you know, whatever your view of whether the uh NDP and BC or the uh conservative, I think it's the Conservative Party in Alberta, uh has the right uh political view, I think this makes absolutely clear why it is so unwise uh to have uh provincial governments, be they on the left or be they on the right, uh trying to inject their uh views and policies and so on into regulators, particularly regulators uh of uh groups like lawyers, who are uh supposed to be there, at least in my view, to do what the legislation used to require, which was a poll to protect the legal rights and freedoms of all people stop. Uh instead, uh they are uh putting their in either direction, they're putting their thumb on it to try to force this regulator uh to compel uh members to uh uh advance uh political goals in either direction. Uh and uh in in my view, at least, that is very, very unwise. You can see exactly what's going to come of this, right? Uh there will be a change of government at some point, for example, in British Columbia and likely in Alberta as well. And do you want to have a circumstance where each time the government changes, the government then goes and uh amends all of the duties and obligations of what is supposed to be a regulatory body to ensure competency uh of you know lawyers, doctors, dentists, psychologists, all these people, uh, do you really wish to have that regulatory body tasked with uh doing things that the government of the day thinks are the thing to do? Um, you know, in the past, there's a reason why some of those bodies, particularly for ones that do uh are often adverse to the interests of the government, lawyers often are, our task is often to oppose things. We're hired by people to oppose what the government's trying to do to you. Um, you know, do you want to have a circumstance where their regulatory body uh is compelling people to do things in one direction or the other? All of it seems very unwise. Uh and uh just this piece of legislation that just came into effect in Alberta this week uh uh it foreshadows, I think, what you can expect in British Columbia whenever there's a change of government. It's not as if in either case you're gonna have uh a change of government and the new government say, oh yes, let's just uh carry on with either of these things. Uh it's gonna be in and out, and uh hopefully uh uh some wisdom prevails and they stop that uh because it's otherwise gonna turn the regulating regulation of professions into a flip-flopping political entity. You know, I guess we see that sometimes in other areas, right? Like in in BC, one of the notorious things each time the government switches uh back or forth, you know, all the legislation dealing with things like uh uh unions uh just flip-flops in one direction or the other, right? Yeah, you know, you have the a right-wing government say, well, it must be secret ballots to be, you know, formula form a union, and then the NDP gets in, no, you must be a show of hands, right? Or whatever it might be. Uh everyone call out, yay, whoever's louder is unions formed, right? And so uh, you know, you know, this this is a version of that. Uh and so uh, you know, maybe uh maybe I'm hoping uh for a bit too much, but uh perhaps the uh at least the government here could uh look across the border and see the future if they uh carry on with uh their their efforts here. Uh so that's latest uh Bill 13, the Regulated Professions Neutrality Act uh in Alberta, uh, and just how it is the complete opposite uh of uh what we've got going on uh currently in France.

The E-Bike Conflict On Video

Adam Stirling 10:02

What happened?

Defence Of Property In Canada

Why The Conviction Survived Appeal

What Reasonable Force Really Means

Michael Mulligan 10:04

Well, it's uh a good example of how things can go really badly really quickly. Uh and the particular uh the the background of all of this is these two men, uh the uh the deceased of the accused, uh both lived in a what's described as a supportive housing complex. Um and the two had long-standing animosity between the two of them. The deceased apparently had a belief that's only in a supportive housing complex, the deceased had a history of writing vulgar comments directed at the appellant, uh, also appears to be a heavy drinker. Uh and uh so the incident itself uh was captured on video from a nearby uh pharmacy that had the video surveillance, and so what went on here uh wasn't uh really uh meaningfully at issue. It was whether uh what occurred uh was a crime or not. Um and the the video showed uh the uh eventual uh deceased enter the video first. He was drinking uh from a Mickey of liquor. Uh he dropped the bottle cap and was having trouble picking it up. He used a cane, the the deceased, the deceased vulgar writing Mickey drinker. Um and you you uh you then see the uh accused person come into the frame riding his before-mentioned e-bike. Um and uh it shows the write-up on the e-bike, he's straddling the e-bike, and there's uh uh altercation between uh these uh two men. I think the you've got the person writing vulgar comments on the ground, you've got uh an altercation between the two of them that included various pushings. Um the uh deceased uh at one point uh hits the uh accused with his cane, uh uh then the accused takes the cane away, the man, the other deceased he falls down but then gets back up. Uh they're continuing to have sort of you know relatively low-level physical altercation. Uh and then uh the appellant or the appellant, the man who uh the e-bike owner, then walks away. And so the first thing as you notice this, even though there's this like physical back and forth with the you know, the fellow uh who eventually died hitting the accused with his cane, and there's pushing back and forth and all of this, one of the things to remember is that in this case turned on the defense of property, the e-bike, rather than self-defense. And one of the reasons for that is that self-defense in the ordinary way doesn't provide you like uh authority to get even with somebody, for example, you know, and even though here the uh eventual deceased had done things including hitting the accused with his cane, um, that had occurred uh earlier, like in a matter of you know maybe a minute or two earlier before the push-it issue is uh occurred, right? Um and so the reason self-defense was no longer really a uh operative thing here is the after the cane incident and so on, the accused walks away. Uh after he walks away, uh the uh eventual deceased decides to uh get up and kick uh the handlebars twice of the e-bike. Uh so he kicks the handlebars twice, the appellant, the accused, then comes back uh and pushes uh the uh drinking man with the cane who writes the vulgar things, and the man falls over uh and hits his head. Uh, and then tragically, uh twelve days later, dies from the uh injury hit well from hitting his head. And so what do you do with that from a legal perspective, right? And you know, for the reason I indicated, self-defense wasn't really an issue because the physical altercation between the two men had ended, you know, a short time earlier and the accused had walked away, right? He wasn't being pursued. What was then was sort of the you know uh vengeance from the unhappy drinking vulgar chalk rating guy kicking the e-bike. Yeah. Uh and the uh so the case turned on uh whether the uh e-bike owner uh was justified in pushing the man uh on the basis of defense of property, which is a separate provision uh in the criminal code. It's distinct from self-defense where you're using force to you know protect yourself or prevent yourself from being assaulted. And you are indeed allowed to use physical force to protect your property. That would be sort of in accordance with what most people would expect. You know, if you come out and somebody's you know busily uh you know keying your car or something, you'd be quite permitted to go over and you know hold on to them, stop them from doing that, right? You don't have to just stand there while somebody you know destroys your property. But it's not without limit. And so this case turns on, you know, how is that to be sorted out? And that prevent section 35, it it speaks about, first of all, a person who's in uh b is in or believes they are in peaceable possession of property, like that's your stuff, right? You think that's what you believe. And then you're permitted to use force to uh if somebody is about to damage or destroy property or make it inoperable, um, uh or to prevent somebody from taking something, damaging it, or destroying your property or from making it inoperable. Um and so the challenge here is that there's another requirement. The final part here is it has to be reasonable in the circumstances. And that's a pretty variable thing, as you might imagine, reasonable in the circumstances. And it that's that that language was introduced uh along with a number of other changes that were made trying to sort of quote simplify um the self-defense provisions. Um and it used to be prior to the that simplification, the language used to be that you could use force to protect your property if you used no more force than is necessary. So it's a slightly different uh language that's used there. And then the other thing which uh is interesting about how this is uh to be applied is that uh a judge is required to assess it on what's called a modified objective approach. What's that? And what that really means is you're not analyzing it simply from the perspective of, well, what did the accused think? Did he think it was reasonable, right? Or something like that. You would a judge would approach it from the perspective of sort of uh a reasonable person who would have then personal characteristics of the accused. So it's sort of that's the modified person part of the object modified objective approach, which is to say there can be consideration given and would be consideration given to things like the size, age, gender, and physical capabilities of the people, right? You know, for example, you know, if a small woman uh was to be trying to, you know, hit somebody on the arm to stop them from damaging her car, it might be analyzed in a different uh uh differently than if some big bodybuilding guy is punching somebody in the arm uh to protect their car, right? So you have to you do have to take those things into account, but it leaves a pretty wide berth at the end of the day for the judge or jury uh to assess whether the force used was reasonable. Um and here, this was the appeal, right? So the court of appeal is looking at, you know, how did the judge approach this thing and was that a an error? Did she approach it correctly? The judge convicted the man. Um and the court of appeal said, you know, yeah, there there was nothing wrong with how the judge approached it. The judge was aware of all the things that went on. She was aware of the fact that Gildasky had previously hit the man with a cane, but that was earlier. She was aware of uh the fact, and it was right there on video, uh, this guy had just uh finished kicking the uh e-bike a couple of times in the handlebars. But you know the judge pointed out that uh, well, the e-bike didn't appear to be seriously damaged. There has to be some, you know, proportionality assessment with respect to that uh the push. And ultimately the judge came down on the side of that wasn't reasonable. Um and on an appeal, right, uh an appeal isn't like a do-over, it it's the Court of Appeal looking at you know what did the judge do, and was that sort of within the realm of reasonable? Did the judge apply the law correctly? And and some of those things are genuinely going to be judgment calls, right? Sort of assessing in a modified objective way, taking into account all of the background and circumstances, things like, you know, is pushing somebody uh to prevent them from kicking your e-bike reasonable. Yeah. Right? And I I imagine, listeners, you'd reasonable people could disagree about that, right? Um you know, somebody might say, well, hold on, you know, what do you have to do? You can't just let somebody, you know, you know, kick away at your bike, and you gotta do something. But um, you know, the other thing to be said about all this uh and in human affairs is sometimes there's some element of consideration uh about the outcome, right? It's not really how it should be analyzed, right? Because the really the uh assessment should be with respect to whether that force use, like the push, uh, was reasonable in all the circumstances. The fact that there happened to be this totally unintended, tragic, and unexpected consequence of the man falling over, hitting his head, and eventually passing away days later from that injury, there's no suggestion that the e-bike owner was, you know, trying to kill the man or, you know, and it's not the kind of physical force where, you know, it's not like if you shot the person or stabbed them or something, you say, Well, what did you think was gonna happen, right? Um, you know, usually the consequences of a push are gonna be sort of a well, yeah, I push, what what more do you cut more come of it? And uh I would uh the real politics of it are likely that, right? If you came out and you came upon somebody who had been writing vulgar things, was drunk, you'd hit some altercation with the guy hitting you with the cane, pushing match, and then he's kicking your property. In most you know, case it was real well, if the physical uh force used was well, it was sort of a shove, and the person you know took a couple of steps back and nothing more came of it. Uh I dare say that the assessment of whether that was reasonable force to protect your property uh might well come down on the uh the uh side of sure. That seems pretty reasonable. It's not a punch, it's not doing something gratuitous, uh, and it's not something which would obviously put somebody's life in jeopardy. Uh but I guess all of this is to say, right, you know, for listeners, you should know that there is this uh authority in the criminal code, section 35. Indeed, you are permitted uh to use force to protect your property or keep somebody from taking it or destroying it or any of those things. That's all allowed. Uh, but it it's all down to that assessment of whether it's reasonable in the circumstances. And so, you know, that's how the law assesses it. And I I must say there there has been debate in in some circles about uh that and and whether that should be extended and whether there should be uh that caveat there. I mean, on one level you might say, well, why would you ever want to allow somebody to engage in unreasonable things to protect their property? Surely we don't want that, right? Uh but you know, you can uh well imagine on the quick, you know, somebody's busily let's say stealing your bike or taking stuff from your house or doing something, you can well imagine uh uh how it can be pretty hard to sit there and carefully weigh up uh all the things in a modified objective way that might go into an assessment of whether the force you're using to protect your property is reasonable. Uh and so, you know, I think that is a a valid uh consideration. You know, in some states you hear about things like stand your ground laws and so on, about uh, you know, the which would effectively remove in some circumstances. A weighing or assessment of reasonableness and circumstances. But in Canada, uh being the uh moderate balanced people we are, uh there's going to be that there is that element of reasonable circumstances, and so your eventual fate is going to be up to a a judge or jury, and in this case it uh landed on you're guilty of manslaughter. And so uh this fellow will likely have some significant period of time in jail to contemplate uh the defense of his e bike.

Adam Stirling 22:27

Michael Mulligan with Mulgan Defense Lawyers, legally speaking, during the second half of our second hour. Thanks so much. Thanks so much. Always great to be here. All right. Quick break. News is next.