Legally Speaking with Michael Mulligan

This week on Legally Speaking with Michael Mulligan:

Unlike criminal cases, where there is always a next appearance date scheduled in court until a case is completed, civil cases are generally moved along by the plaintiff.

The case discussed on the show involved a civil claim resulting from an apparently defective drop-side crib. The issue was identified in 2009 and resulted in the crib manufacturer recalling the cribs. Several proposed class actions were also filed in different provinces.

In BC, a proposed class action was filed one day after the recall of the cribs was announced.

A couple of years after the BC case was commended, the plaintiff asked the court to be replaced as the proposed representative plaintiff because of family and work time commitments. The judge managing the case denied the application to change plaintiffs, in part because the original plaintiff still had the crib, which the defendants wanted to have examined by an engineer.

Approximately 8 years then passed without any meaningful steps being taken by the plaintiff to move the case forward.

The defendant crib manufacturer eventually applied to have the case dismissed for “want of prosecution”. The test when this kind of application is made involves consideration of the length of the delay, explanations for the delay, an assessment of whether the defendants suffered prejudice and finally the judge deciding if the balance of justice requires the action to be dismissed.

The case discussed was dismissed both because of the amount of time that had passed and the fact that the crib in question had inexplicably been lost, before it was examined by the defendants.

Also, on the show, the lawyer for an accused person in a criminal contempt prosecution relating to the alleged blocking of a driveway at a “tank farm” in Burnaby, contrary to an injunction prohibiting interference with the Trans Mountain Pipeline, asked the judge to take judicial notice that the activity occurred on “unceded indigenous territory” or “indigenous territory”.

In criminal cases, ordinarily, evidence of an alleged fact needs to be called if a party wants a judge to take it into consideration. 

Judges can, however, take judicial notice of facts that are clearly uncontroversial without requiring evidence.

To take judicial notice of something a judge must be satisfied that a fact is either: 1) so notorious or generally accepted as not to be the subject of debate among reasonable persons or 2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

While the judge agreed that it’s obvious that indigenous people occupied some parts of BC before Europeans arrived, the assertion that the driveway in question was either “unceded” or “indigenous territory” was not a notorious fact.

The judge rejected the claim that the territorial acknowledgements often used by politicians could be the basis for taking judicial notice of the alleged fact: “In any event, I hardly think that statements by politicians, which may be made for any number of reasons and not for the purpose of court proceedings, can be taken as a readily accessible source of indisputable accuracy.”

While it’s unclear that the claim the driveway in question was unceded indigenous territory will have any relevance to the criminal contempt trial, if the defendant wishes to rely on this assertion, they will need to call evidence to establish it.

Finally, on the show, courts in BC have announced that many of the COVID safety protocols that were put in place at courthouses will be removed as of April 11, 2022.

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

This week on Legally Speaking with Michael Mulligan:

The Criminal Code permits judges to make orders for the forfeiture of the proceeds of crime. When the proceeds of crime are not readily accessible because they cannot be located, have been transferred to a third party, are outside of Canada, or for various other reasons, a judge can order a “fine in an amount equal to the value of the property”.

Where such a fine is not paid, a judge can set a default period in jail.

In the case discussed on the show, a man was convicted of stealing a very large amount of maple syrup from a warehouse in Quebec. Barrels of maple syrup were removed, the syrup extracted, and the barrels returned full of water.

The man sold the stolen syrup for $10 million. Later he paid people who helped with the theft $9 million, leaving him with $1 million.

The legal issue in the case, which ended up in the Supreme Court of Canada, was how much the fine should be. The trial judge, and ultimately the Supreme Court of Canada, concluded that the fine must be in the full amount the man received for the stolen syrup: $10 million. Because of how the section was worded, the fine must be the full amount of the value of the proceeds of crime the man had before paying the people who helped with the theft.

There can only be a reduction in the amount of the fine where other offenders were ordered to pay back a portion of it, or where there was a separate order to repay the money.

As a result, in addition to an 8-year jail sentence, if the man doesn’t pay the $10 million fine within 10 years, he will be subject to an additional 6 years in jail.

Also, on the show, a Supreme Court of Canada case involving elections with respect to trials is discussed.

When someone is charged with a serious offence, by indictment, they have a choice about what kind of trial they wish to have: Provincial Court, Supreme Court, or Supreme Court with a jury. This choice is a significant one and should be made by the accused person, with advice from a lawyer.

In the case discussed, the lawyer for the accused was alleged to have made the election without express instructions from the accused person. Following a conviction at trial, the accused person appealed arguing that he wasn’t permitted to choose what kind of trial he would have.

Ultimately, the Supreme Court of Canada concluded that while the man should have made the decision himself, he didn’t suggest his choice would have been any different from that made by his lawyer at trial. As a result, there was no prejudice to him, and he will not be permitted to have another trial.

Another case discussed on the show involved a claim arising from a woman in BC who suffered a serious blood clot after she used a contraceptive patch.

The manufacturer of the patch, that the woman was suing, argued that her claim shouldn’t be allowed to proceed because she didn’t claim that she read the warnings in the package the patch came in, or that she wouldn’t have used the patch had the warnings included more information about the risks.

When it’s shown that a person would have proceeded with medical treatment, even if they had been told about risks that they weren’t advised of, they may not have a case even if the risk materializes.

In the case discussed, the BC Court of Appeal allowed the claim to proceed on the basis that it would be an issue at trial with respect to what risks should have been included with the patch and that it would not be helpful for the woman to make a self-serving claim that she wouldn’t have used the patch had she been told about a higher risk of a blood clot.

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

This week on Legally Speaking with Michael Mulligan:

British Columbia has a special provincial sales tax that applies to all legal bills. It is supposed to be dedicated to funding legal aid. The tax now collects more than twice the amount that is provided for legal aid. The extra, more than $100 million per year, is used for general government revenue and, as a result, the legal aid system in British Columbia is underfunded.

The diversion of the tax revenue has several unfortunate results.

Financial eligibility for legal aid is so low that a single person with a full-time minimum wage job is considered too rich to be helped by legal aid but would be very unlikely to be able to afford legal help.

People with legal problems that were previously covered by legal aid no longer receive any help. These include poverty law and many kinds of family law problems.

Even when legal problems are covered by legal aid, the amount paid to hire a lawyer is so low it can be difficult to find an experienced lawyer willing to help.

A further systemic difficulty with legal aid in BC is that decisions about how legal aid is to be provided are no longer independent of the provincial government, which is often opposed in interest to the people receiving help from legal aid. This has had real implications for how legal aid helps people. For example, the provincial government has authorized legal aid to assist people who are making slightly more than minimum wage, and who are charged with criminal offences, but only if they agree to plead guilty quickly.

Having poor people plead guilty quickly may save the provincial government money, but it is not fair that they only receive legal help if they agree to do this.

Despite all these serious problems, the provincial government recently announced a small increase in legal aid funding amounting to just over $8 million per year.

Amongst other things, the additional funding will support the Child and Youth Legal Centre which provided legal help to young people who are involved in child protection of family law disputes. This will assist judges in considering the wishes of young people when deciding how they should be dealt with in these kinds of cases.

Young people can get this kind of help by calling 1-877-462-0037.

Also on the show, a case involving an application for additional time to appeal a conviction for fraud over $5,000 arising from a guilty plea to cheating at baccarat. Because the man that plead guilty was not a Canadian citizen, he was being deported.

While the man had no previous criminal record and was married with three children who were Canadian citizens, a conviction for an offence for which someone could receive a sentence of 10 years or more makes the person ineligible to remain in Canada on the grounds of “serious criminality”.

In this case, even though he only received a sentence of 90 days, he was still being deported because of the sentence he could have received.

The man’s application for additional time to appeal was refused on the basis that his appeal had no reasonable prospect of success.

Finally, on the show, a man who had his personalized licence plate with his last name, Grabher, was not permitted to renew it after 27 years because it was deemed to support sexualized violence. His application to appeal to the Supreme Court of Canada was refused based on freedom of expression.

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

This week on Legally Speaking with Michael Mulligan:

Equity is a body of law that was originally developed in the English Court of Chancery. It was distinct from the common law, prior to English reforms in the 1870s. Since then, in England, and other jurisdictions with an English legal tradition including Canada, Australia, and New Zealand, equity is the origin of legal principles including the law of trust, fiduciary law, subrogation, unjust enrichment, and equitable estoppel.

A case discussed on the show involved a couple who agreed to purchase a house together but then separated.

Despite claiming that she intended to do so, the ex-girlfriend paid nothing towards the down payment, mortgage payment or any other expenses relating to the home. She was, however, listed in the land title system as an owner and she claimed that she was entitled to half the value of the house. 

In British Columbia, a central tenant of the Land Title Act is the idea of indefeasible title. This means that whoever is listed as the owner of property in the land title registry is conclusively the owner of the property. The principle makes it easier to buy and sell real estate because you can unambiguously determine who owns it. You don’t need to be concerned about who might have owned the property previously and whether someone purporting to own property has proper title to it.

In the case of the house that was registered in the name of both the ex-boyfriend and ex-girlfriend, the trial judge, and the BC Court of Appeal, both concluded that while the ex-girlfriend was the registered owner of half the house, she did so only as a trustee for the ex-boyfriend.

When someone receives something for no consideration, they have the burden of proving that the intention was for the property to be given to them as a gift. Otherwise, there will be a resulting trust and the recipient of the property if only keeping the property for the benefit of the real owner.

In addition, both courts concluded that the equitable principle of unjust enrichment also applied to the facts of this case.

Also on the show, people charged with criminal contempt relating to efforts to block logging in Fairy Creek will be permitted to argue that charges should be stayed because of alleged police misconduct.

The decision discussed involved a screening hearing to determine if the argument had sufficient merit to permit it to proceed. The judge hearing the case concluded that the argument had "at least a toe-hold in the jurisprudence" and so should be permitted to proceed. People who were not charged would not be allowed to participate in order to “air their grievances”.

Finally, on the show, the British Columbia Liquor and Cannabis Regulation Branch has been ordered to turn over documents relating to the search and seizure of 242 bottles of whisky from a restaurant.

The whisky was seized on the premise that it was purchased from a private liquor store and not the Liquor Distribution Branch.

As with other regulatory schemes, the Liquor Control and Licensing Act allows for inspections without a warrant. The legislation does, however, permit prosecutions and even jail sentences for conduct that can also be dealt with as a regulatory matter. Where a search is related to potential prosecution, a warrant is required.

In the case discussed the search operation was even named: “Operation Malt Barley”.

The documents ordered produced will assist in determining if what occurred was a regulatory inspection that happened upon the whisky, or if it was a search for the whisky that could have resulted in a prosecution.

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

This week on Legally Speaking with Michael Mulligan:

Two men charged with criminal contempt for breaching an injunction prohibiting interference with the construction of the Trans Mountain Pipeline plead guilty and were sentenced.

Neither man had a previous criminal record.

The first man was a 69-yead old, retired university professor. He had climbed a tree and used a bicycle lock around his neck, and cables, to secure himself to the tree in order to slow construction of the pipeline. The police used a cherry picker to remote him.

The second man was 21 yeas old. He provided no details of his personal circumstances. He attempted to use a “sleeping dragon” that was buried beside him to secure himself to the ground. He failed to properly secure himself within the device and so the RCMP were able to easily remove his hands and arrest him.

Aggravating sentencing considerations included the fact that the injunction had been in place for some time, that the men had breached the injunction in a public way, including by the conduct of media interviews.  Mitigating factors included that they neither man had a previous record and both plead guilty.

The judge pointed out that sentences for criminal contempt generally increase over time until compliance is achieved.

The 69-year-old man was sentenced to 21 days in jail, while the 21-year-old received 14 days in jail. Distinguishing factors included the time and effort to remove them and the degree to which they had publicised their breached the court order. 

Also on the show, the BC Court of Appeal overturned an award of punitive damages against an insurance company that denied a travel insurance claim and then managed to pay the hospital involved less than ordinarily billed by not telling them that that the claim had, eventually, been allowed.

The incident involved a man who purchased travel insurance before a trip to Reno. He experienced a loss of consciousness (known as a “syncope”) while drinking at a bar and fell hitting his neck. He was hospitalized for 12 days and had a pacemaker installed. The hospital bill was $293,127.60.

For two years, and with little investigation, the insurance company denied the claim alleging that it was caused by drinking alcohol, despite medical evidence to the contrary. Eventually the insurance company relented, once a court case had been commenced, and agreed to cover the claim. Without telling the hospital that they had agreed to cover the claim, the insurance company got the hospital to agree to apply an “uninsured discount” and settled with them for $47,000.

This was upsetting to the man because of the excellent care he had received from the hospital.

Insurance contracts require the insurance company, and the insured, to act in good faith. This means, amongst other things, that the insurance company must act fairly and reasonably. They must give as much consideration to the interests of the insured as their own interested.

The trial judge concluded that the insurance company had not done this and awarded $100,000 in punitive damages against the insurance company.

The BC Court of Appeal overturned this award on the basis that the insurance company eventually agreed to pay the claim and because the duty to act in good faith applies only to the insured person and not, for example, the hospital which may have been misled when it agreed to reduce its bill.

Finally, on the show, the Crime Victim Assistance Act, and how it relates to civil claims for injuries caused by criminal activity, is also discussed.

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

This week on Legally Speaking with Michael Mulligan:

As a matter of public policy, courts will not recognize a benefit accruing to a criminal for his crime. As a result, a murderer cannot collect life insurance or a gift in a will from the person they murdered.

A recent BC Supreme Court case considered how the estate of a mother, who was murdered by one of her two adult sons, should be divided.

The son, who committed the murder, had a daughter who was born 11 days after the murder.

The mother’s will provided for her estate to be divided equally between her children, however, if one of them were to predecease her, their share was to be given to their children. Failing this, the residue of the estate was to be given to two charities. 

Section 86 (1) of the Trustee Act allows the executor of a will to seek advice from a judge with respect to the administration of an estate.

As the son who committed murder was not dead, it was unclear who his share of the estate should pass to: his brother, his infant daughter, or the two charities.

One of the executors of the estate provided the judge with an affidavit indicating that the deceased mother told her that that her relationships with her sons had eroded and that she was considering changing her Will to ensure her grandchildren were provided for.

When deciding how a will should be interpreted, the paramount concern for a court is the intent of the testator at the time the will was executed.

As a result, the judge hearing the application directed that the share of the estate that would have otherwise gone to the son who committed murder should go to his daughter.

Because the daughter was only five years old, the funds will be managed by the Public Guardian and Trustee of British Columbia.

The next case discussed on the show involved an appeal by an English to Arabic translator who was convicted of defrauding ICBC by helping clients cheat on the knowledge test for their learner’s licences.

The actus reus of the offence of fraud has two elements: 1) a dishonest act and 2) deprivation.

A central issue on the appeal was whether ICBC was deprived of anything.

Relying on a Supreme Court of Canada case that involved an unsuccessful effort to fix a horse race by injecting a horse with a performance-enhancing drug, where the injected horse still came in sixth, the BC Court of Appeal upheld the fraud conviction.

The risk that ICBC could face higher costs because of unqualified drivers getting into accidents was found to be sufficient to amount to a deprivation.

Finally, on the show, an evaluation of a prototype model to promote the early resolution and management of family law cases in Provincial Court is discussed.

The Early Resolution and Case Management Model was tried in Victoria. It required people wanting to make family court application to first engage in a needs assessment and dispute resolution though a Justice Access Centre.

The result was a significant reduction in adjournments, court appearances, and time in court.

Because of significant cuts to legal aid funding several years ago, many people with family court issues do not have a lawyer to assist them. This has resulted in more court time being used as judges have struggled to assist unrepresented people with complex family law issued.

The needs assessment and dispute resolution rules are an attempt to alleviate some of this.

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

This week on Legally Speaking with Michael Mulligan:

More than 400 people are being prosecuted for criminal contempt arising from alleged breaches of an order from the BC Supreme Court that prohibits people from obstructing logging at Fair Creek. 

This has resulted in some logistical issues with large numbers of accused people requiring legal advice prior to entering pleas and fixing dates for trial or sentencing.

Following the Stanley Cup riots, Legal Aid BC developed a mass arrest policy to facilitate the provision of legal advice to large numbers of accused people.

Both the initial court appearances and the provision of summary legal advice are occurring by phone or video connection because of COVID.

For accused people who qualify for legal aid, Legal Aid BC has suspended choice of counsel and is assigning cases to one of a team of lawyers who are defending groups of people, based on the day they were arrested.

The Rainforest Flying Squad has apparently been using donated money to pay for lawyers only for accused people who are black, indigenous, or people of colour. Other accused people, who can’t afford a lawyer, are being left to seek help from Legal Aid BC.

Trial dates are being set for 5 days each and will be comprised of all the people arrested on each day. This will permit common evidence concerning what occurred each day to be heard by the judge once for the relevant group of accused people.

In BC there are a substantial number of prior criminal contempt sentencing cases because of previous unlawful protest activity. Based on factors that influenced prior cases, Crown Counsel has developed a formula for what kind of sentences they will ask for if an accused person pleads guilty.

While the judge will ultimately decide what sentence to impose if someone pleads guilty, the Crown sentencing position is determined by factors including:

1)When the person engaged in criminal contempt. In this regard, previous cases have made clear that sentences are to increase over time until compliance is achieved.

2)When someone pleads guilty. In this regard, the Crown’s position on sentence increases as time passes to encourage people to plead guilty earlier. There may be some issue with the approach being taken by Crown in this regard because the rate at which their suggested sentence increases is more than what courts would ordinarily engage in.

3)Whether the person used a device to avoid being removed from the road and how complex the device was. Earlier cases have indicated this is a factor in sentencing.

While, in the past, protests that have constituted criminal contempt largely people standing passively on the road, 84% of the Fairy Creek accused were using devices of various kinds to make their removal more difficult for police. This has resulted in the Crown seeking jail sentences for many more accused.

Many of the accused people have been surprised to learn that they may be facing jail sentences as they were led to believe this wouldn’t be the case.

Also on the show, a defamation case, from Port Alberni, is discussed. The case involved the director of a non-profit literacy society defaming two employees of a non-profit society that assists homeless people.

After being served with notice of the civil claim, the defendant director only appeared in court briefly, once, and didn’t otherwise show up or hire a lawyer to defend the case. This resulted in a $345,000 judgment.

The defendant non-profit society was unsuccessful in its application to set aside the judgment.

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

This week on Legally Speaking with Michael Mulligan:

The first case discussed on the show involved three First Nations Children who were brought to BC from Saskatchewan to live with their grandmother. The parents of the children were unable to care for them because of ongoing alcohol and substance abuse.

Shortly after they arrived the grandmother found marijuana in the effects of one of the children who was a nine-year-old girl. The girl clearly had a very challenging background. The judge found that she had “extensive knowledge about drugs (for a 9 year old girl) of multiple varieties, including how to consume them and disclosed seeing people do bumps and lines of cocaine and exchange money for drugs.”

While the grandmother had attended 16 court appearances concerning the children and made clear that she was willing to care for the children if their parents fell back into addictions, she was not applying to become a guardian for the children.

Because the grandmother wasn’t applying to become the children’s guardian, the Director of Child, Family and Community Service opposed her becoming a formal party to the court proceedings concerning the safety of the children.

Despite this opposition, the judge hearing the case relied upon 2021 changes to the Interpretation Act that require legislation to be interpreted in a way that is consistent with the Declaration on the Rights of Indigenous Peoples Act. This legislation is based on the United Nations Declaration on the Rights of Indigenous People.

Because of the principles in this legislation, the judge found that the grandmother should be able to participate in the court proceedings concerning her grandchildren even though she wasn’t asking to become their guardian.

Also on the show, the ongoing negotiations between the Crown Counsel Association and the Provincial Government are discussed. The Crown Counsel Association represents Crown Counsel who are responsible for the prosecution of criminal charges in BC.

The central issue in the negotiations involves the continuation of a salary agreement that linked the salary of Crown Counsel to the salary of Provincial Court Judges.

Provincial Court Judges have a process to set their salaries that is intended to be independent of government because the judges make decisions involving the government.

On multiple occasions, the Provincial Government has interfered with the independent process to set the salaries for Provincial Court Judges because salary increases for the judges would impact what Crown Counsel are paid.

In 2000, the Crown Counsel Association had a short strike during salary negotiations, which they called a “study session”. During this time several criminal cases were dismissed for want of prosecution. Some of these dismissed cases were later appealed and one of the appeals is discussed on the show. On appeal, the judge hearing the case concluded that a case can’t be dismissed for want of persecution unless the accused person is first asked if they wish to plead guilty or not guilty.

The Crown Counsel Association has been running radio ads raising the prospect of senior Crown Counsel leaving for private practice.

Finally, on the show, a case involving a father who quit his job due to a claim of stress, nine days after a child support order was made is discussed. This was not found to be a basis for reducing the father’s child support obligations or cancelling arrears that had accumulated. Both parents are required to support their children financially and the amount will be determined based on what they could earn, not what they do earn.

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

This week on Legally Speaking with Michael Mulligan:

The Provincial Court in British Columbia handles 95% of criminal cases, as well as many family law cases, youth, small claims, and ticket disputes.

The 2020 / 2021 annual report from the court is discussed on the show. Significant changes during this time include that 77% of all appearances in Provincial Court were technology-enabled: at least one party appeared remotely.

To facilitate the COVID-19 motivated increase remote appearances, the court spent an extra $442 thousand dollars on information technology systems. This was, however, more than offset by a $1.4 million savings on travel costs. Without the increased capacity to handle remote appearances, judges, court clerks, and others spent more time and money travelling.

An example of technology-enabled appearances that began prior to COVID, but has expanded in response if the Justice Centre which uses telephone and video conferencing to connections to permit judicial justices to conduct bail hearings and to review search warrant applications. In 2020 / 2021 the Justice Centre handled 17,682 bail hearings and 24,803 search warrant and production order applications.

Also on the show, the Supreme Court of Canada considered a case involving a warrantless strip search.

To arrest someone for a criminal office, without a warrant, a police officer must have reasonable grounds to believe they committed a criminal offence. An arrest on this basis also permits the officer to search the person, and their surroundings, for weapons, means of escape, and evidence of the offence for which the person is being arrested. Typically this will take the form of a pat-down search.

To conduct a more intrusive strip search, the police officer would also need to have reasonable and probable grounds to believe that such a search would reveal a weapon, means of escape or evidence of the office for which the person is being arrested. The strip search must also be conducted in a reasonable way. This would ordinarily mean in a location that can afford privacy.

In the case discussed, the search was found to be reasonable because when the accused person was being arrested for drug trafficking their pants were partially down and the officer saw the accused reaching towards the back of his pants. A strip search revealed drugs concealed in and around the accused person’s buttocks.

Finally, on the show, a 6-year sentence for a man convicted of possessing fentanyl and carfentanil, in Nanaimo, for the purpose of trafficking, is discussed.

While the man plead guilty, the case involved a “Gardiner” hearing, which takes its name from a Supreme Court of Canada Case: R. v. Gardiner. This is a hearing, as part of a sentencing hearing, where there is a dispute about an aggravating or mitigating fact.

In this case, the accused was found with a bag containing more than $20,000 and a large quantity of drugs. The accused man was homeless: sleeping in parks and eating at soup kitchens. His evidence on the Gardiner hearing was that he was not the owner of the cash and drugs but was rather holding the bag for a higher-level drug dealer in anticipation of receiving some drugs in return.

The judge found that the Crown had not proven that the homeless man was the owner of the money and drugs but that, despite this, his moral culpability was high because the drugs were so dangerous. The homeless accused man testified that he had known many people who died of drug overdoses.  As a result, a six-year jail sentence was imposed.

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

This week on Legally Speaking with Michael Mulligan: 

The BC Court of Appeal allowed an appeal by Teal Cedar extending an injection against people attempting to physically prevent the company from logging.

The original interim injunction was not renewed by a judge because of concerns with respect to how the RCMP was enforcing the injunction and the fact that the conduct of the people attempting to physically prevent logging also constituted criminal offences that could be prosecuted without an injunction. 

In allowing the appeal, the BC Court of Appeal held that the fact conduct may also constitute a criminal offence is not a reason to deny an injunction application. The reason for this conclusion was that someone who is applying for an injunction to prevent unlawful conduct does not have control over whether the police or provincial Attorney General will exercise their discretion to arrest and prosecute.

The court pointed out that, in the past, the BC Attorney General adopted a policy not to prosecute people who were unlawfully obstructing logging. The availability of an injunction permits a remedy that is not subject to political or other considerations. 

Injunctions also permit more specific prohibitions, such as exclusion zones, that are not available pursuant to the criminal law except in the form of release conditions for people already charged with a criminal offence.

With respect to concern over the conduct of the RCMP when enforcing the injunction, the decision makes clear that the RCMP and the court are separate entities. Issues with respect to RCMP conduct can be raised while defending a charge of criminal contempt and are not a basis for denying an injunction. 

Finally, the BC Court of Appeal made clear that courts do not determine if the public policy with respect to logging is appropriate and that the protesters who were attempting to impose their will by force were abandoning the democratic process:

• [76]         It is not tenable in a democracy for a group to abandon the democratic process and impose their will on others by force. In a complex, pluralistic society, the democratically-elected government makes laws, and the courts interpret and uphold them. Barring constitutional overreach, the laws and decisions flowing from them are to be respected and enforced.

Also, on the show, a dispute between a strata corporation and a property developer concerning payment for a shared electric car is discussed.

As a proposed amenity for the building, a shared electric BMW was offered. To facilitate this the property developer leased the car and had the strata corporation take over responsibility for the lease.

At the time this was arranged the developer also controlled the strata corporation as the units in the building hadn’t been sold yet.

Once the new owners of the units took over management of the strata corporation they objected to having to pay for the car. They raised various unsuccessful arguments about not having been told about the arrangement, and not having voted on it.

Ultimately, the strata corporation was ordered to pay the developer for the costs associated with terminating the lease for the BMW.

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