Legally Speaking with Michael Mulligan

This week on Legally Speaking with Michael Mulligan:

An appeal in a criminal case does not involve asking the judges hearing the appeal to retry the case. It’s a review of what took place at the original trial.

The Court of Appeal can allow an appeal if the verdict at trial was unreasonable and not supported by the evidence, if there was a wrong decision made by a trial judge on a question of law, or if there was a miscarriage of justice.

When a trial is decided by a judge without a jury, the trial judge would provide detailed reasons explaining how they arrived at their decision. That permits a review of the legal analysis when there is an appeal.

Where, however, there is an appeal from a jury verdict, there are no reasons for judgment so appeals will focus on legal rulings the trial judge made during the trial and the instructions they gave to the jury.

One of the things that juries are commonly told is that they should follow the trial judge’s instructions with respect to the law because, if the judge makes a mistake with respect to the law, that can be reviewed on an appeal. 

Even when the Court of Appeal determines that a trial judge made a wrong decision on a question of law, a new trial may not be ordered if the mistake could not have impacted the outcome of the trial. The language used when there is such a finding is that there was “no substantial wrong or miscarriage of justice”.

In the appeal of the Andrew Berry murder conviction, which is discussed on the show, the defence argued that the judge made several legal errors concerning the admissibility of evidence. The Crown’s submissions were that the decisions made by the judge were not mistakes but, if they were, they would not have changed the result of the trial.

Also on the show, an application for a ban on publication of evidence provided to the accused during the criminal contempt prosecutions for members of the Rainforest Flying Squad and others is discussed.

In criminal cases, the Crown is required to provide disclosure of all the evidence gathered by the police. This is an important requirement to help prevent wrongful convictions. In Canada, there have been several instances of innocent people being convicted because exculpatory evidence was not given to them.

When evidence is provided to an accused person or their lawyer it is often referred to as disclosure material.

There is a legal requirement called an “implied undertaking” that prohibits the disclosure material from being used for any purpose other than the defence of the criminal case.

In the case discussed, one or more of the more than 400 people being prosecuted for criminal contempt failed to keep the disclosure material they received confidential, and it ended up in the hands of journalists.

The Crown was successful in applying for an order that the journalists do not publish the contents of the disclosure material unless and until it was used in open court.

Finally, on the show, a man convicted of drug offences and sentenced to six years in jail based on evidence from a disgraced former Victoria police officer is discussed.

The man was connected to the drugs in question based on a key allegedly found by the former police officer that opened a safe in which the drugs were located. The former police officer claimed that he found the key and put it in his pocket before officers assigned to take photographs of the room where he said he found it did so.   

The former police officer was subsequently alleged to have engaged in 13 counts of improper disclosure of information, 3 counts of deceit, 2 counts of discreditable conduct, and 1 count of neglect of duty.

Follow this link for the cases discussed.

This week on Legally Speaking with Michael Mulligan:

Bill C-21 proposes various amendments to the Criminal Code and Firearms Act to restrict gun ownership.

One part of the legislation is a proposal to freeze the sale or transfer of handguns. This has already had the unintended consequence of causing handgun sales to skyrocket in anticipation of the possibility of sales being stopped.

As currently drafted Bill C-21 includes other provisions that would have unintended consequences. These include various automatic and mandatory provisions that would prohibit people from possessing firearms if there are ever subject to a protection order or engage in an “act of domestic violence”.

Protection orders can take many forms. Some protection orders can be obtained “ex parte”. This means that the person against whom the order applies was not present for the application and did not have an opportunity to make submissions to a judge about it.

Automatically prohibiting someone from continuing to possess firearms without affording an opportunity to attend a hearing or challenge the decision is not procedurally fair and would almost certainly have intended consequences.

The proposal to impose automatic prohibitions on firearms ownership based on a person engaging in an “act of domestic violence” is also problematic. This term is not defined in the legislation. Pursuant to the Family Law Act in British Columbia, family violence has been defined to include things inconsistent with the ordinary meaning of violence.

Pursuant to the Family Law Act, family violence includes “unreasonable restrictions on, or prevention of, a family member's financial or personal autonomy” and “intentional damage to property”.

If the undefined term in the legislation was interpreted in a way consistent with the Family Law Act, automatic firearms prohibitions could flow from someone causing some minor damage to property or unreasonably restricting the “financial autonomy” of a spouse.

Much like with mandatory minimum sentences, while automatic and mandatory provisions are politically catchy, they fail to consider endlessly variable human affairs. Discretion and judgment are required to prevent unintended consequences.

Also on the show, the impact of the ICBC no-fault motor vehicle insurance scheme on the case of a protester who was injured when the ladder he was sitting on collapsed is discussed.

The ladder in question was attached to a trailer that was positioned on a highway to block access to a ferry terminal. A person who was stuck in the resulting traffic jam removed a piece of wood that was attached to a rope that was attached to the ladder. A few minutes later the protester, who remained at the top of the ladder to make it more difficult to remove the trailer from the road, fell to the ground when the ladder buckled and collapsed.

A foundation of the no-fault insurance scheme in British Columbia is a provision in the Insurance (Vehicle) Act that prohibits people from suing for injuries they suffer that is “caused by a vehicle arising out of an accident”.

The term “vehicle” is defined to include a trailer.

As a result, the injuries sustained by the protester may therefore have arisen out of an accident caused by a vehicle: the trailer with a tall ladder affixed to it.

The flip side of this is that the injured protester may be able to claim no-fault accident benefits from ICBC.

Finally, on the show, a Court of Appeal decision concerning the quashing of a search warrant for video surveillance footage from a Hells Angels clubhouse is discussed.

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

This week on Legally Speaking with Michael Mulligan:

When the divorced father of an adult child with learning disabilities was diagnosed with terminal cancer, he established a trust with $750,000 to provide for his son following his death.

As he had been through an acrimonious divorce, the father was concerned that his ex-wife did not get access to the funds for her own purposes. To prevent this the father made his two sisters trustees with broad discretion to use the funds to assist his son.

The ex-wife, with whom the son lived, had the son sign a power of attorney permitting her to commence a lawsuit on behalf of the son seeking to remove the sisters as trustees and to take over the administration of the trust herself.

A trustee has a fiduciary relationship with the beneficiary of a trust. That means that the trustee must make decisions that are in the best interest of the beneficiary and not themselves.

The ex-wife’s complaints included that the trustees were not paying for everything she wanted them to.

The sisters were concerned about the funds lasting long enough to take care of the son for the rest of his life.

For their part, the sisters offered to have the administration of the trust turned over to a trust company if the judge concluded that was best but did not wish the ex-wife to have control over the funds as that would have been contrary to their late brother’s wishes.

The judge concluded that the sisters had been acting responsibly and in the best interests of the son and that there was no basis to have them replaced as trustees.

Also on the show: brevity in legal arguments is not only good advocacy but, in some cases, as rule.

In the Court of Appeal and the Supreme Court of Canada, there is both a written argument, called a factum, as well as an oral argument. There is a size limit for factums. In civil cases, in the BC Court of Appeal, the limit is 30 pages. If someone wants to file a longer factum, they must obtain permission from a judge.

In the case discussed, an appellant attached a draft 82-page factum to an application for more space. The application was denied. The judge reluctantly permitted the appellant to file a 40-page factum but ordered that they would need to pay costs to the other parties who attended the application.

Finally, on the show, a case involving a financial advisor from Victoria who became involved in a multi-year romantic relationship with a wealthy older client is discussed.

After the relationship ended the financial advisor sought the division of property from her former client and romantic partner on the basis that they had a “marriage-like relationship” of more than 2 years.

Under the BC Family Law Act, if someone is in a marriage-like relationship for at least two years they can be entitled to a share of the couple's property.

A second issue in the case is that the former client asked for repayment of $100,000 he provided to the financial advisor that she used as a down payment on a home.

After considering a range of factors about the relationship, including intimate details of the couple’s sexual practices, living arrangements, and activities, the judge concluded that they were not in a marriage-like relationship.

With respect to the $100,000, when someone claims they received money as a gift they have the burden of proving this. The judge concluded that the financial advisor had not done this and she was ordered to repay the money.

The case also raises important questions about the propriety of a financial advisor engaging in a romantic relationship with a paying client, to whom she owed a fiduciary duty.

Follow this link for the cases discussed. 

The week on Legally Speaking with Michael Mulligan:

The Supreme Court of Canada has found that making people ineligible to even apply for parole for 150 years is cruel and unusual punishment.

In 1967 Canada repealed the Criminal Code provisions that allowed people convicted of murder to be put to death by hanging, except in the case of on-duty police officers and prison guards. These last exceptions were finally repealed in 1976.

The death penalty provisions for murder were replaced by mandatory sentences of life in prison.

As life sentences for murder remain mandatory, the only issue for a judge to decide is the parole ineligibility period.

Being eligible to apply for parole does not mean that someone would be successful in getting parole. The primary issue when someone applies for parole is the safety of the community, and if a prisoner remains a danger, they may never actually receive parole.  The ineligibility period simply means that a prisoner could not even ask for parole.

For second-degree murder, parole eligibility can be set at between 10 and 25 years. For first-degree murder, it is 25 years.

Several years ago, parliament amended the Criminal Code to permit consecutive 25-year parole ineligibility periods when someone is convicted of the first-degree murder of more than one person.

The Supreme Court of Canada concluded that prohibiting a prisoner from even applying for parole for longer than anyone might live is cruel and unusual punishment.

Similar decisions were reached in Germany, France, and Italy in previous court cases in those countries.

The Supreme Court of Canada concluded that a jail sentence with no possibility of release is degrading in nature and presumes that the offender is beyond redemption. To ensure respect for human dignity, Parliament must leave a door open for rehabilitation even in cases where the prospect of this is very low.

The court found that the objectives of denunciation and deterrence are not better served by the imposition of excessive sentences and that beyond and certain threshold, these objectives lose all their functional value, especially when the sentence far exceeds the human life expectancy.

Also, on the show, a series of class action cases involving fees charged to merchants for accepting payment by credit card is discussed.

The class action claims had been based on various arguments including Competition Act provisions, civil conspiracy to injure and unjust enrichment.

Ultimately, after more than a decade of work, a settlement was reached and approved by courts in the various Canadian jurisdictions that were involved.

$131 million is available for distribution to businesses that accepted credit card payments any time between March 23, 2001, and September 2, 2021.

To receive funds from the settlement a business needs to file a claim prior to September 30, 2022.

Claims can be filed online at: https://www.creditcardsettlements.ca

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

This week on Legally Speaking with Michael Mulligan:

Section 530 of the Criminal Code provides a right to a trial in either English or French. It also requires a judge or justice “before whom an accused first appears” to inform accused people of this right.

If someone requests a trial in French or English no later than the time set for their trial, it is mandatory that this be provided. If a request is made later, a judge has discretion, but this is required to be exercised in a permissive way.

If two or more people are being tried together, they might make elections concerning the official language that they wished to use. In such a case, a bilingual judge or jury would requried.   

In a BC Court of Appeal case discussed on the show, a bilingual man, whose first language was French, sought a new trial, after being convicted, because he wasn’t informed of his right to have a trial in French.

In dismissing his appeal, the Court of Appeal pointed to several factors.

The man was bilingual and had no apparent difficulty communicating in English that could have resulted in a need for a judge to make further inquiries concerning the language of the trial.

The man had a lawyer assisting him and no issue concerning the language of the trial was raised prior to the appeal.

The paperwork to attend court the man had been given following his arrest included notice of the right to have a trial in French or English, printed in French and English.

At the first court appearance, where someone should be informed of their right to trial in English or French, the accused man was not present as he had retained a lawyer to appear for him.

The Court of Appeal decision does suggest that, if the preference for a trial in French had been raised prior to the conviction and appeal, there may well have been a different outcome.

Also, on the show, the reasons for judgment in the case of Craig James, the former Clerk of the Legislative Assembly of British Columbia are discussed.

Mr. James was charged with several counts of fraud and breach of trust relating to matters including the payment of a “long service” or “retirement allowance” of $257,988, the purchase and use of a log splitter and trailer, as well as numerous other purchases including clothing.

Mr. James was found not guilty of all the charges he was facing, with the exception of fraud under $5,000 relating to the purchase of two suits, a tie, and a dress shirt.

While the judge found that Mr. James was likely not entitled to the $257,988 he had paid to himself, he had recieved an opinion from a senior lawyer that suggested he might have been entitled to the money. As a result it wasn’t possible to conclude beyond a reasonable doubt that there had been fraud or breach of trust.

The history of the “long service” or “retirement allowance” was that prior to Mr. James taking over as Clerk, the people who served as “table officers” in the legislature had been lawyers in private practice who did this work but did not receive pension, vacation, or other benefits paid to regular government employees. The allowance was intended to make up for this when they retired.

Mr. James did receive the pension, vacation, and other benefits for the entire period of his employment, however, the policy with respect to the allowance was still in place.

The conviction relating to the suits, tie and dress shirt was because Mr. James mischaracterized these expenses to make them look like they related to the uniform he would wear in the legislature. For example, he wrote “tabs” on the receipt for the tie.

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

This week on Legally Speaking with Michael Mulligan:

Criminal offences require two things, often described with Latin names: actus reus and mens rea. Actus reus is an intentional physical act. Mens rea is a guilty mind.

We don’t wish to convict people for physical acts that were not intentional: crashing your car when you have a heart attack or tripping and falling into someone else would not be criminal offences, even if someone else was injured.

We also don’t want to convict people who don’t intend to do something wrong. If, for example,  a checkout clerk at a store fails to scan something in your grocery cart properly and you walk out of the store without having paid for the item, it would not constitute theft.

Being drunk will not ordinarily provide a defence to a criminal offence. When, however, someone is so impaired by alcohol or drugs that they are no longer capable of voluntary actions, it can amount to automatism. Such a state could result in involuntary movements like those that might result from sleepwalking or someone having a seizure.

The Supreme Court of Canada recently considered a case in which a young man consumed alcohol and psilocybin mushrooms which, according to expert evidence that a trial judge accepted, caused hallucinations and ultimately for him to lose voluntary control over his actions. In this state, the man broke into a house and hit a random woman with a broom, injuring her.

The Supreme Court of Canada found section 33.1 of the Criminal Code, which permitted convictions even where there was no actus reus, or mens rea, because of voluntary intoxication, to be unconstitutional.

The Supreme Court of Canada pointed out that section 33.1 made no distinction between legal and illegal drugs. Someone who had an adverse reaction to an anesthetic and, while incapacitated, involuntarily hit someone could have been convicted of assault because of section 33.1.

The court pointed out that it would be constitutionally permissible to create an offence of criminal intoxication, which would be focused on intentionally getting into a state of extreme impairment and then causing harm, rather than attempting to convict people for physical acts they had no control over.

Also, on the show, in a companion decision to the one referred to above, the SCC clarified the concept of Horizontal stare decisis.

The court system is organized as a hierarchy. There is a Provincial Court, a Superior Court, and a Court of Appeal in each province. The Supreme Court of Canada then hears appeals from all the Courts of Appeal. Lower courts are required to follow the decisions of higher courts in the same province.

The Supreme Court of Canada pointed out that judges are also required to follow the decisions of other judges from the same level of court in their province: Horizontal stare decisis.

This requirement promotes consistent, predictable decision-making.

A judge is only permitted to depart from a legal finding of a previous judge of the same court in the circumstances set out in a BC case dating from 1954: Re Hansard Spruce Mills.

Finally, on the show, the BC Court of Appeal, in a 2 – 1 split decision, has found some impugned provisions of the ICBC no-fault scheme to be constitutionally permissible. The provisions prevent injured people from suing in Supreme Court.

The issues in the case involved the jurisdiction of the BC Supreme Court judges and the lack of independence of the Civil Resolution Tribunal, which has been permitted to make decisions concerning disputes with ICBC, even though it’s not independent of government.

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

This week on Legally Speaking with Michael Mulligan:

The leaked draft decision on abortion from the US Supreme Court has raised questions concerning the law in Canada.

For 100 years in Canada, from 1869 until 1969, having or performing an abortion was a criminal offence in Canada.

In 1969 the Criminal Code was amended to permit abortions but only when a committee of doctors certified that a woman’s life or health was in danger. As “health” was not defined, the interpretation of this exception was inconsistent between hospitals.

Dr. Morgentaler was an abortion advocate and openly acknowledged performing hundreds of abortions without the approval of a committee of other doctors. He was repeatedly charged with performing abortions but was acquitted on each occasion by juries.

Juries are not required to give reasons for their verdict and can apply community standards to criminal prosecutions by refusing to convict.

Crown Counsel appealed one of the jury acquittals, and the Quebec Court of Appeal substituted a conviction. This resulted in public outrage and eventually the “Morgentaler Amendment” to the Criminal Code, which, in 1975, removed the authority of Courts of Appeal to enter a conviction where a jury finds someone not guilty. Following this amendment, a Court of Appeal can only order a new trial.

Also, in 1975, Dr. Morgentaler appealed his conviction to the Supreme Court of Canada, arguing that the criminal code law restricting abortion was unconstitutional. Because this was prior to the Canadian Charter of Rights and Freedoms, he was unsuccessful. The Supreme Court of Canada held that the law was valid. This decision was two years after the US Supreme Court decided Roe vs. Wade.

In 1988 Dr. Morgentaler was back in the Supreme Court of Canada, again arguing that the 1969 Criminal Code restrictions on abortion were unconstitutional. This time, he was successful.

The Charter became part of the Canadian Constitution in 1982. As a result, in 1988, a majority of the Supreme Court of Canada found that the abortion offence in the Criminal Code violated section 7 of the Charter, which guarantees that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Conservative governments made two subsequent attempts to pass legislation to restrict abortion. The second attempt passed in the House of Commons but resulted in a tie vote in the Senate. Pursuant to the rules of the Senate, a tie vote does not pass, and, as a result, the new Criminal Code restrictions on abortion did not become law.

As a result, there are no federal laws in Canada restricting abortion, and it is dealt with like any other medical procedure.

Also, on the show, a protester charged with criminal contempt for allegedly breaching an injunction relating to blocking logging in the Fairy Creek area was found not guilty. The Crown must prove that the accused knew about the injunction to be convicted of criminal contempt.

While the injunction was posted on the internet, there was no evidence the accused had seen it.

The man was not physically blocking the road to the logging area. Instead, he crossed the road twice while banging a drum.

The RCMP had read out a summary of the injunction telling people they couldn’t blockade the road. The accused was arrested 15 seconds later.

There wasn’t evidence that the accused had been told the injunction prohibited him from crossing the road.

Finally, the legal approach to assessing the credibility of an accused person in a criminal case is discussed.

Follow this link for links to the cases discussed. 

There are a relatively small number of people who are responsible for a high volume of property crime and associated public disorder.

There are a large number of police interactions with people committing offences such as shoplifting, mischief, possession of stolen property, possession of drugs, and breaching previous orders.

This has resulted in frustration and a recent letter from BC Urban Mayors complaining about this issue.

The people repeatedly committing offences of the kind described are most often mentally ill, homeless, and addicted to drugs.

Someone in this circumstance is likely to commit offences on an almost continuous basis to get money to purchase drugs.

They will shoplift things to sell, break into cars, homes, and businesses, sell small amounts of drugs to others, and engage in prostitution.

This behaviour causes a great deal of social disorder, impacts many innocent people, and is expensive to deal with.

The solutions to these legitimate concerns have not, however, been identified by the BC Urban Mayors. They have suggested that the problem could be solved by stricter bail conditions, a lower charge approval standard, or exempting police from needing to provide Crown Counsel with all the evidence they have collected in a timely way.

Having mentally ill drug addicts spend more time in jail for the property crimes they commit will not solve the problem. A jail sentence does not cure mental illness or drug addiction. At the end of each jail sentence, the person is released back onto the street to continue the cycle of drug use and offending.

The Urban Mayors further claim that “The solution is not for municipalities to keep adding safety resources – we have been doing that, which has come at the cost of other essential services, programs and infrastructure in our communities.”

One program that has met with some success in reducing the impact of prolific offenders has been the Assertive Community Treatment Program. It involves teams of social workers, police, and mental health professionals assertively monitoring and intervening with prolific offenders often on a daily basis.

A recent request for funding of two additional police officers to work on ACT teams was refused by the municipality of Esquimalt, along with a request for several additional police officers to work in other capacities.

In the City of Victoria, the police department is widely acknowledged to be short-staffed and stretched to deal with high call volumes.

Adequate police resources are not a complete solution, but it is necessary.

In British Columbia, the provincial Offence Act provides authority to compel
chronic alcoholics to undertake treatment. The scheme involves a physician certifying someone as being in need of treatment and a judge confirming the certification after 72 hours.

The scheme, which is now fallen into disuse because of the absence of actual treatment facilities, might be a model for people who are addicted to drugs and engaged in repeated criminal activity to support this.

The first step to permit something like this would be to create secure treatment facility spaces to treat people suffering from drug addiction, which is commonly combined with other mental health challenges.

Additionally, as has already been proposed by the provincial government, the provision of drugs to people who are addicts would both reduce overdose deaths and the large volume of property crimes committed to get money to purchase drugs.

It makes no sense to address drug addiction and mental illness by repeatedly prosecuting people for shoplifting or for breaching conditions ordering them not to possess drugs.

Follow this link for a transcript of the show.

This week on Legally Speaking with Michael Mulligan:

An RCMP officer from Nanaimo is on trial for assault causing bodily harm after he is alleged to have punched a detainee in the eye causing a fractured orbital bone.

The complaint in the case was arrested on her 19th birthday after her friends called the police for help because she was so drunk. The RCMP officer that attended was unable to find a safe place for the woman due to her level of intoxication, so he arrested her for being in a state of intoxication in a public place.

The RCMP officer brought the woman back to the police station to book her into cells for the night so that she could sober up. As the woman was physically resisting, the RCMP officer sought assistance from a second RCMP officer.

While walking down a hallway towards a cell, the drunk woman attempted to resist the two RCMP officers and swung her foot out towards the officer that arrested her. The officer responded by taking the woman down to the ground, on her back. The drunk woman then punched the RCMP officer in the upper body or face and, after several more swings or punches, the RCMP officer punched the woman back, once, causing a fractured orbital bone.

The physical interaction was all captured on video.

In a criminal trial, the Crown goes first calling evidence. This is because the accused person is presumed to be innocent and is not required to prove they didn’t commit an offence.

In the trial of the RCMP officer, after the Crown finished calling evidence, a “no evidence” application was made. In cases with a jury, this can kind of application can also be called an application for a directed verdict.

When this kind of application is made, the judge hearing the case must determine if a theoretical jury could properly convict the accused. If they could not the judge would allow the application and acquit the accused without requiring them to decide if they wish to testify or call evidence.

In the case discussed, the RCMP officer accused was relying on both general self-defence provisions as well as section 25 of the Criminal Code, which provides a special defence for police officers. Section 25 permits police officers to use force that is likely to cause death or grievous bodily harm to a person who has been arrested if they believe it’s necessary to prevent death or grievous bodily harm to themselves or others. The section also permits police officers to use as much force as is necessary for the administration or enforcement of the law if they act on reasonable grounds.

Because, when a no-evidence application is made, a judge must assume that all inferences that could be drawn from the evidence would be favourable to the Crown, the application was unsuccessful in the case discussed.  The RCMP office on trial will, therefore, needs to decide if he wishes to testify or call other evidence.

Also, on the show, a 91-year-old father of two adult children tried, unsuccessfully, to undo a transfer of his home into joint tenancy with one of the children.

When a property is put in joint tenancy, if one of the joint tenants dies, the other becomes the owner of the entire property, with no reference to what a will might say.

The adult child refused to respect the father’s wishes to undo the transfer.

Finally, on the show, a judge has concluded that an application for child support for a child who is more than 19 years old must be brought by the child and not the parent on behalf of the child. Child support, after a child reaches 19 years of age, can continue if the child still requires support because of disability, continued education or similar circumstances.

Follow this link for links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:

Section 8 of the Charter provides that everyone has the right to be free from unreasonable search or seizure.

A search conducted by the police, without prior judicial authorization, is presumptively unreasonable.

One of the exceptions to this principle is that police are permitted to conduct searches incidental to a lawful arrest.

If a police officer has reasonable grounds to believe that someone has committed a criminal offence, they are permitted to arrest them.

When arresting someone, a police officer is permitted to search them, and the areas surrounding the person being arrested for safety, means of escape, and evidence of the offence for which the person is being arrested.

In a case discussed on the show, the Supreme Court of Canada considered if the police have the authority to search a person’s home, beyond the immediate surroundings, when arresting someone.

The Supreme Court of Canada concluded that, when arresting someone in their home, they are only permitted to conduct a search, beyond the area immediately surrounding the person being arrested, they must have reasonable grounds to suspect that there is a safety risk that would be addressed by the search and the search, for safety purposes, must be conducted in a reasonable manner, given the high privacy interest in a home.

Also, on the show, a proposed class action against the University of Victoria for failing to refund the cost of parking passes when in-person classes were suspended because of COVID.

One of the claims being made by the student who made the claim was that the contract for the parking pass was “frustrated” because of COVID and the university stopping in-person classes.

For a contract to be frustrated, in a legal sense, there are two requirements:

1.A qualifying supervening event for which the contract makes no provision, is unforeseen and is not the fault of either party, which

2.Causes a radical change in the nature of a fundamental contractual obligation.

Because the 12-month parking pass contract provided that it could be cancelled, for any reason, within the first 4 months, for a pro-rated refund, the judge hearing the case found that provision had been made for intervening events of any kind.

In addition, the judge concluded that the parking pass contract provided only for parking and did not include an implied term that the university would be open for classes. The student was still permitted to park at the university, even if there would be no reason to do so.

As a result, the judge dismissed the claim and ordered the student making the claim to pay costs to the university.

Finally, on the show, a judge dismissed an application for an interim injunction to permit mink ranching to resume in BC.

Because COVID passes easily to and from mink and humans, the province of BC has prohibited their ranching. This easy transmission has the potential to facilitate mutations in the virus.

Despite the potentially irrepealable harm to mink farmers, the judge concluded that deference was required to the government’s efforts to promote the public interest.

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