This week on Legally Speaking with Michael Mulligan:

Some people opposed to the requirement to be vaccinated for COVID-19 to attend non-essential businesses such as restaurants and bars have suggested that they have a right to do these things because of the BC Human Rights Code. 

While the BC Human Rights Code does have a provision that precludes discrimination in the provision of service based on various factors including physical or mental disability, this is subject to “bona fide and reasonable justification” for denying service. 

It is also uncertain if a refusal to get vacated would constitute a physical or mental disability. 

More significantly, it’s important to remember that the Human Rights Code is only a piece of provincial legislation. 

In British Columbia, there COVID-19 Related Measures Act became law on July 8, 2020. This act continues ministerial orders that were originally made pursuant to the Emergency Program Act. It also allows for new ministerial orders to be added to address COVID-19.

Section 2 of the COVID-19 Related Measures Act specifies that in the event of a conflict with any other act of regulation, the COVID-19 Related Measures Act, and regulations under the act prevail.

Therefore, if a ministerial order preventing unvaccinated people from attending non-essential businesses was found to conflict with some provision of the Human Rights Code, the ministerial order would prevail. 

It is therefore exceedingly unlikely there will be a successful Human Rights Code claim to permit unvaccinated people into non-essential businesses. 

Also on the show, a judicial review has found a decision of the Cowichan Valley Regional District to refuse permission to build a home to be unreasonable. 

The Cowichan Valley Regional District relied upon the Local Government Act and the Riparian Areas Protect Act to deny approval for a home to be built on Cowichan Lake.  

The judge on the judicial review concluded that while the Riparian Areas Protect Act permitted development within 30 meters of the lake to be restricted if it would cause “harmful alteration, disruption of natural features, functions and conditions that support fish like processes in the riparian assessment area”, that it was unreasonable to use this justification to prohibit any development in that area. 

As a result, the couple wishing to build a new home will be allowed to do so. 

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

This week on Legally Speaking with Michael Mulligan:

Anti-vaccination protesters have been holding up copies of the Canadian Charter of Rights and Freedoms and arguing that it prohibits restrictions on unvaccinated people entering restaurants, bars, gyms, and other locations. 

British Columbia, and several other provinces, are implementing systems to provide digital proof of vaccination against COVID-19 in parallel with restrictions on unvaccinated people attending to a range of non-essential service locations where transmission could occur. 

One of the Charter sections frequently reference by anti-vaccination advocates is section 7, which provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordant with principles of fundamental justice.” 

The legal meaning of this important protection is not so expansive as to prevent anyone from being encouraged or even compelled, to do anything they don’t like. 

The rights and freedoms protected by the Charter have legal meanings that are explained in court decisions considering them. It is necessary to review these decisions to determine how the language in the Charter is likely to be interpreted in future cases. 

In addition, Section 1 of the Charter says the following “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 

It is therefore exceedingly unlikely that the Charter would be interpreted in such a way that would afford unvaccinated people the right to engage in non-essential activity that puts other people at greater risk of infection with COVID-19.

The Charter also doesn’t prohibit laws intended to protect individuals themselves. Examples of these include seatbelt law, helmet laws for bicycles and motorcycles, and laws that prohibit the personal possession of dangerous drugs. 

Also on the show, the BC Court of Appeal has expanded the circumstances in which a marriage annulment can be obtained. 

To obtain an annulment based on a failure to consummate a marriage, it’s necessary to establish that the failure to consummate the marriage was the result of a physical inability or psychological incapacity to do so. 

The case the Court of Appeal dealt with involved a Sikh couple who were married in a civil ceremony prior to live together because doing otherwise would be contrary to their religion. They put off consummating the marriage until they could also have a traditional Gurdwara ceremony, on religious grounds. Before that occurred, the couple separated.

The Court of Appeal concluded that sincerely held religious belief can constitute a “psychological incapacity” to facilitate an annulment. 

Finally, on the show, in response to ongoing COVID-19 challenges, the Provincial Court has now facilitated either the person disputing a Motor Vehicle Act ticket, or the police officer who issued it, applying to appear in court by use of MS Teams, or telephone. 

This change, like some others prompted by COVID-19, will add to general efficiency and will facilitate access to the court at a lower cost. People will be able to dispute tickets without needing to travel to the location they were issued or taking more time away from work. Police, who may be subject to transfer will be able to attend court at a lower cost. 

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

This week on Legally Speaking with Michael Mulligan:

Since the beginning of COVID, civil jury trials have been suspended in British Columbia.

Unlike criminal jury trials, which are constitutionally required as an option for people facing more than 5 years in jail, there is no similar protection for civil jury trials.

While civil jury trials were the norm at the time of confederation, their use has decreased. One of the reasons for this is the cost of conducting a jury trial. The party requesting a civil jury trial needs to pay the costs, which can run into thousands of dollars. Ordinarily, the party who wins at trial would, ultimately, pay the additional costs. 

Recently, in BC, most civil jury trials are requested by ICBC when defending claims. This may have some strategic advantages for ICBC because of how civil jury trials work. Juries cannot be given any instructions with respect to how damages for pain and suffering should be determined. With no guidelines, the amounts awarded can be unusually low, or high. 

Where the amount of very high, this can be appealed to the Court of Appeal. When the amount is very low, this is argued to be the jury just not believing the person was seriously injured. 

In BC, civil juries are comprised of 8 people and, after three hours of deliberation, 6 of the 8 are sufficient to render a verdict. This is because civil cases are decided on a balance of probabilities, and not proof beyond a reasonable doubt.

Some provinces, including Alberta, have restricted civil jury trials to categories of cases where community values may be the most important including malicious prosecution, wrongful imprisonment and claims for breach of promise to marry. 

An example of a breach of promise to marry case, from BC, is discussed on the show. 

In addition to bringing community values to the justice system, allowing jury trials can also be valuable in permitting ordinary people to participate and share their experiences with the community. 

The BC government is accepting submissions with respect to what should be done with civil juries until September 30, 2021. Submissions can be emailed to [email protected]

A report with respect to civil jury trials has also been prepared. 

Also on the show, the BC Court of Appeal considers how much more money a man who failed to pay income taxes for more than a decade should need to pay before being discharged from bankruptcy. 

Declaring bankruptcy does not ensure that someone will be discharged either quickly, or without needing to pay back more money over many years. In the case discussed, after several years in bankruptcy, the man was ordered to pay an additional $45,000 over five years, at a rate of no less than $750 / month. 

Finally, a case involving a BC employment contract that provided for adjudication in Ontario is discussed. The clause would have made it more expensive and difficult for the BC employee to sue for wrongful dismissal. 

The employee in the case was fired with 30 days of notice, after working for more than a decade as a counsellor. The judge concluded that the clause was unenforceable for several reasons including that it was unconscionable, that there was no consideration provided when the clause was added to the contract, and because it didn’t say that Ontario jurisdiction was exclusive.

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

This week on Legally Speaking with Michael Mulligan:

In British Columbia, the Wills, Estates and Succession Act sets out requirements for a will to be valid. These include a requirement that a will be signed by the will-maker as well as two or more witnesses. 

In a case discussed on the show, a 76-year-old woman was living in a care facility and provided instructions to her lawyer to draft a new will. Unfortunately, the appointment to sign the will was scheduled for March 20, 2020. The appointment was cancelled because the care home the woman was living at prohibited residents from leaving, or visitors from attending, because of COVID. 

Sadly, the woman passed away before the will was signed. She had no children, and her husband had predeceased her. 

In a previous will, from 2014, a large portion of the woman’s estate would have gone to the Kelowna General Hospital Foundation. In accordance with her instructions, the new will that was drafted, but not signed, did not include the Kelowna General Hospital Foundation but, instead, left most of the estate to the woman’s nephew and nice-in-law. 

According to the correspondence with her lawyer, the woman was clear that she did not wish to leave any money to the Kelowna General Hospital Foundation because she had no connection to the organization. She indicated that this had been a suggestion by her late husband. 

The Wills, Estates and Succession Act allows a court to “cure deficiencies” in a will that would otherwise be invalid. One of the things that a judge needs to be satisfied of in order to exercise this authority is that the will must represent fixed and final intentions regarding the disposal of property upon death. 

The Kelowna General Hospital Foundation argued that the unsigned will should not be relied upon because in a note to her lawyer, after reviewing the draft will the woman said, “no charities at this time.”

Despite this, the judge hearing the case concluded that the unsigned will did represent the woman’s fixed and final intentions and found it to be valid even though it hadn’t been signed or witnessed. 

Also on the show, the University of Victoria is resisting a proposed class action seeking refunds of parking pass fees for the period of March 16, 2020, to August 31, 2020. After selling the parking passes, the university closed the campus because of COVID. 

The university was successful in an application to permit it to make an argument to have the claim dismissed, prior to a hearing to determine if the case should be certified as a class action. The practical implication of this is that the student acting as the proposed representative plaintiff could be ordered to pay thousands of dollars in costs if the university is successful. If a case is certified as a class action, the representative plaintiff is no longer at risk of being ordered to pay the costs of the defendant. 

Finally, on the show, an unsuccessful judicial review of a Human Rights Tribunal decision. The case involved an academic advisor who was fired from his job at UBC because he was using gay dating apps to meet people, including students, at the university. UBC took the position that this was a conflict of interest. The academic advisor argued that this was discrimination based on sexual orientation. 

The judge hearing the case found that while the evidence in the case could have supported inferences of discrimination, that this was not sufficient to overturn the decision of the Human Rights Tribunal. To reverse this kind of decision the judge would need to be satisfied that it was patently unreasonable.

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

This week on Legally Speaking with Michael Mulligan:

An increasing number of jurisdictions, including New York, Quebec, France, and Israel are prohibiting people who are not vaccinated for COVID-19 from being in public places where people are in close contact, such as restaurants, bars, concerts, and museums.

In Canada, the federal government has announced that it will be providing electronic vaccine passports to facilitate international travel, as well as provincial restrictions such as those being imposed in Quebec. 

In British Columbia, the Public Health Act provides authority to prohibit people who have not been vaccinated from engaging in activities or entering places such as restaurants. These provisions are found in section 16 of the Public Health Act. 

Other possible restrictions would include not permitting unvaccinated people from attending in-person classes at universities or residing in university student housing. The University of Ottawa has made COVID-19 vaccination mandatory for students, staff, and faculty.

Section 15 of the Public Health Act is also discussed on the show. This section makes it an offence for anyone to “willingly cause a health hazard, or act in a manner that the person knows, or ought to know, will cause a health hazard.” 

Also on the show: pepper spray is a prohibited weapon in Canada. This means that simply possessing pepper spray can result in a criminal conviction, even if it’s not used. Because the theoretical maximum penalty for possession of a prohibited weapon is 10 years in jail, someone who is not a Canadian citizen could end up being deported, without a hearing, if convicted of this offence. 

The regulation that makes pepper spray a prohibited weapon described what is prohibited in this way:

1.   Any device designed to be used for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge therefrom of 

(a)  tear gas, Mace or other gas; or

(b)  any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.

The BC Court of Appeal has considered this section and concluded that even though something like Mace, which is designed for self-defence, is prohibited, bear repellant, which may be the same substance in a larger bottle, would not be prohibited because it’s not “designed” to injure or immobilize a person. 

Even though bear spray may not be a prohibited weapon, it could still be a weapon and therefore constitute an offence if someone were to carry it in a concealed manner, or for a dangerous purpose. 

A sentencing decision involving pepper spray is also discussed on the show. It involved an altercation between an 86-year-old and a 57-year-old man shopping at Costco in Vancouver. Following an alleged elbow bump in a doorway, the 86-year-old man pepper-sprayed the 57-year-old man. Despite having pepper spray in his eyes, the 57-year-old ran after the 86-year-old and pushed him with both hands from behind. 

The 86-year-old man fell, hit his head, and died. The 57-year-old was convicted by a jury of manslaughter and sentenced to 18 months in jail.

This case may have formed part of the basis for the federal government’s rejection of Alberta’s recent request to legalize pepper spray for self-defence.

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

This week on Legally Speaking with Michael Mulligan:

The former Clerk of the BC Legislative Assembly, Craig James, was successful in having one of the charges he was facing dismissed. 

Mr. James was charged on a six-count direct indictment. 

To be charged by direct indictment, either the Attorney General or Deputy Attorney General need to provide their consent. When this happens, an accused person no longer has the right to elect what kind of trial they wish to have and there can no longer be a preliminary inquiry to determine if there is enough evidence to proceed to trial. 

Five of the charges on the direct indictment alleged specific wrongdoing, such as obtaining a benefit from the purchase and use of a trailer and wood splitter paid for with public funds.  

The first charge, on the direct indictment, alleged that between September 10, 2011, and November 21, 2018, he did “commit breach of trust in connection with the duties of his office by using his position to advance his own personal interests of the public good, contrary to section 122 of the Criminal Code.”

The trial judge agreed that there were several challenges created by this charge.

The charge duplicated the other five charges, without adding anything new. It would have made the trial more complex for the jury and ran afoul of a principle that a charge should generally relate to a single transaction. 

As a result, the trial judge exercised her authority to quash the count and manage the trial in a way that would be fair to Mr. James. 

Also on the show, the BC Court of Appeal has concluded that the Motor Vehicle Act provisions that make it an offence to “hold” an electronic device while driving are not restricted to holding a device in your hands. 

The driver in question had a phone wedged between his leg and the seat.

The Court of Appeal concluded that the ordinary grammatical meaning of the word “hold” and found that it can include “physically grasping, carrying, or supporting an electronic device with any part of one’s body in a position in which the device may be used.”

Finally, on the show, a judge has approved a settlement of a class action against Cathay Pacific Airways Limited as a result of a 2018 data breach that affected 9.4 million passengers worldwide.

Approximately 230,000 passengers were covered by the BC class action. 

As a result of the data breach, names, passport numbers, credit card numbers, and other sensitive data were exposed online. 

When there is a proposed settlement of a class action a judge needs to determine if the settlement would be in the interest of the class members. 

The judge is also required to approve legal fees and an honorarium for the person who served as the representative plaintiff and needed to spend time assisting with the case. 

In the case discussed, a settlement of $1.55 million was approved and the representative plaintiff was provided with an additional $1,500 honorarium.

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

This week on Legally Speaking with Michael Mulligan:

The City of New Westminster cancelled a meeting room rental that had been booked by The Redeemed Church of God for a "Youth Conference". 

The City of New Westminster has a booking policy that “restricts or prohibits user groups if they promote racism, hate, violence, censorship, crime or unethical pursuits.”

Following an email complaint that the Youth Conference would be an anti-LGBTQ event, the City of New Westminster made some online inquiries and determined that a speaker at the event had a large profile on social media and recent Facebook postings expressing anti-LGBTQ views. 

As a result, The City of New Westminster cancelled the room rental. 

The Redeemed Church of God complained about the cancellation and ultimately filed a petition in the BC Supreme Court to, amongst other things, ask that the cancellation be judicially reviewed and reversed. 

The request for judicial review was denied on the basis that the room rental was a contractual arrangement and not subject to judicial review. 

The judge hearing the case did, however, find that the City of New Westminster had breached The Redeemed Church of God’s right to freedom of expression because the city didn’t take sufficient steps to inform itself about the anticipated content of the Youth Conference to permit a balancing of competing rights to be conducted before making the decision to cancel the room booking. 

Also on the show, a decision from the BC Court of Appeal will allow a defamation claim against a former employee of a Vancouver cryptocurrency company to proceed to trial. 

The former employee had previously been successful in having the case dismissed pursuant to the Protection of Public Participation Act. 

This act, which was introduced in 2019, is intended to prevent unmeritorious civil claims from being used to prevent public criticism. 

The Court of Appeal concluded that the judge who dismissed the claim made a mistake in dismissing the claim because, if defamation is proven, damages are presumed to have occurred.

Finally, another Court of Appeal decision dealing with a sentence appeal by a Métis woman who was sentenced to nine months in jail for an assault causing bodily harm conviction is discussed.

The appeal was premised in part on an argument that the sentencing judge had failed to give adequate consideration to the woman’s background, which is expressly required by section 718.2 (e) of the Criminal Code. 

That section requires that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

In this case, the Court of Appeal concluded that that judge was not required to do more than they had, given the absence of information concerning the impact the woman’s Métis heritage had on her difficult background. 

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

This week on Legally Speaking with Michael Mulligan:

A City of Victoria Councillor was caught on video offering money to a tow truck driver and arguing with an RCMP office, in an unsuccessful attempt to dissuade the tow truck driver from removing cars associated with a logging blockade that has been enjoined by a BC Supreme Court injunction. 

This activity is discussed in the context of the reasons for judgment granting the injunction.

In his reasons for judgment, the judge referenced section 423 (1) of the Criminal Code. That section makes it a criminal offence to block or obstruct a highway or to watch or beset a person’s place of work, for the purpose of compelling someone to abstain from doing anything that they have the legal right to do. 

The judge pointed out that an injunction against committing what would already be a criminal offence is possible where the criminal conduct affects the exercise of a private right.

Also on the show, the Justice Centre for Constitutional Freedoms, a right-wing legal advocacy group, was caught using a private detective to conduct surveillance on the Chief Justice of the Court of Queen’s Bench in Manitoba. 

The Justice Centre for Constitutional Freedoms was litigating a case, with the Chief Justice, on behalf of seven Manitoba churches, arguing that their right to worship and assemble was violated by COVID-19 restrictions. 

The Justice Centre’s Litigation Director claimed responsibility for the decision.

For his part, the Chief Justice, who spotted the surveillance, advised that he would continue to hear the case. He surmised that it was an effort to gather evidence about his compliance with COVID health restrictions. 

The surveillance efforts apparently included the judge’s home and cottage.

Finally, on the show, a new government website that provides information concerning the process to pay, or dispute, various kinds of tickets is discussed. 

Tickets can be issued for provincial, federal, and municipal offences and each of these has a different process to pay or dispute it.

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

This week on Legally Speaking with Michael Mulligan:

After accepting $40,000 for expenses, a surrogate mother is asking to be declared the mother of a four-year-old, and obtain access to the child, on the basis that she claims to have become pregnant as a result of an affair with the child’s father, rather than through the use of a home artificial insemination kit. 

For his part, the father has admitted to having an affair with the surrogate mother but alleges that this occurred only after the birth of the child. 

The surrogate mother has presented records of having terminated two pregnancies, prior to becoming pregnant as a surrogate, where she listed the father of the four-year-old as an emergency contact. She claims that these pregnancies were a result of an affair with the father. 

For the first two years of the child’s life, her parents permitted the surrogate mother to spend time with her. This relationship between the parties faltered when the surrogate mother demanded $100,000 and a fixed visitation schedule. 

A trial to determine if the surrogate mother should be listed as a parent of the child, and obtain access to her, is scheduled for later in the year. 

While awaiting trial, the surrogate mother applied for interim access to the child. This application was denied by a judge following an assessment of the best interests of the child. The judge concluded that the child’s best interests were served by stability, pending the outcome of the trial. 

Also on the show, the destruction of churches, a Captain Cook statue, and a totem pole and how these could relate to sections 21 and 718.2 of the Criminal Code. 

Section 21 of the Criminal Code is concerned with parties to an offence. Anyone who does or omits to do anything for the purpose of aiding any person to commit an offence or abets any person in committing an offence is a party to an offence. 

Section 718.2 (a) (i) makes it an aggravating factor on sentencing that an offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor.

Finally, section 96 of the Constitution Act 1867 provides for the federal appointment of Superior Court Judges.

Superior Court judges can only be removed from office by the Governor General on address of the Senate and House of Commons.

This prevents Superior Court Judges from being fired for making decisions the government doesn’t like.

The independence that this provides could be undermined if the government could transfer the jurisdiction of Superior Court judges to different kinds of judges it could fire or otherwise control. 

A recent Supreme Court of Canada decision concluded that, for this reason, the province of Quebec was not permitted to transfer jurisdiction over claims up to $85,000 to Quebec’s provincial court. 

This decision is likely to have implications for British Columbia’s effort to transfer jurisdiction over claims relating to the new ICBC no-fault system to the Civil Resolution Tribunal. Adjudicators who make decisions in the Civil Resolution Tribunal are on short-term government contracts and could be fired, or not have their contracts renewed if the government was unhappy with decisions they were making. 

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

This week on Legally Speaking with Michael Mulligan:

In 1976, when Canada eliminated the death penalty for murder, the compromise was a mandatory life sentence for people convicted of murder. 

One of the circumstances where mandatory life sentences can result in an excessively long period of time in jail is for people who are subject to long periods of domestic abuse who eventually kill their partner. 

Recently, in Alberta, a woman who was seriously abused by her husband for almost thirty years eventually shot him while he was sleeping. The abuse included ordering the wife around with a gun and threatening to kill her if she left the marriage.

Crown Counsel charged the woman with first-degree murder but eventually agreed to accept a guilty plea to manslaughter on the condition that she would agree to an 18-year jail sentence.

Because a conviction for first-degree murder requires a life sentence, with no possibility of parole for 25 years, the woman agreed. 

In some cases, battered women syndrome has been recognized as a basis for self-defence, even where the abusive partner wasn’t a threat at the time of the killing. How this would be viewed by a jury on the facts of a particular case would always be uncertain. 

When there is a guilty plea and agreement between the lawyers involved concerning the sentence to be imposed, a judge is required to impose the sentence unless doing so would bring the administration of justice into disrepute. This is a very high standard and is intended to encourage cases to be resolved by negotiations. 

Following the sentencing, there was public backlash on the basis that the sentence was excessive, given what precipitated the killing. An online petition to reduce the sentence collected almost 24,000 signatures. 

On appeal, a new lawyer acting for the woman is arguing that the petition is evidence that the sentence does bring the administration of justice into disrepute and should be reduced. 

There is no mandatory minimum sentence for manslaughter.

Also on the show, following the resignation of Julie Payette as Governor General, the Chief Justice of the Supreme Court of Canada took over as Administrator, fulfilling the Governor General’s responsibilities. 

Authority for the Chief Justice to take over these responsibilities is derived from the Letters Patent, 1947, issued by King George VI. 

In this capacity, the Chief Justice is giving Royal Assent to bills, and would also be responsible for things such as dissolving parliament for a general election, choosing a Prime Minister to form a government, and reading the Speech from the Throne. 

This second job could become awkward if the Chief Justice was later hearing a challenge to the legislation, he had delivered a Speech from the Throne about and then provided royal assent for. 

 Finally, a prosecution in Hong Kong for violating China’s national security law has demonstrated how the Chinese Communist Party has dissolved a justice system that was previously similar to the one we have in Canada.

The case involves a man charged with sedition and terrorism offences for riding a motorcycle while carrying a flag with a pro-democracy slogan on it. 

The security law allows the government to pick which judges can hear the case, deny the man a jury trial, hold him in jail until his trial, and subject him to a maximum sentence of life in prison if convicted.

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