Legally Speaking with Michael Mulligan

The Douglas Lake Ranch is the largest private landholding in British Columbia. It’s owned by Stan Kroenke, a US billionaire who also owns the NHL’s Colorado Avalanche and the NFL’s L.A. Rams. 

The ranch has been involved in a legal dispute for years attempting to stop people from using a road the runs through the ranch, and two lakes that are surrounded by ranch property but owned by the Province of British Columbia. 

In 2018 the Nicola Valley Fish and Game Club was successful in BC Supreme Court. The judge who heard the case examined historical documents, photographs, and survey and determined that the road in question was a public road and that the public was permitted to use it to access the lakes in question. 

This decision and an appeal by the ranch to the BC Court of Appeal are discussed on the show.

Also discussed are two other decision by the BC Court of Appeal:

The court dismissed an appeal from a woman who was seeking permission to use reproductive material from her late husband who died suddenly. The reproductive material was preserved as a result of an urgent, after hours, court application.

In Canada, the Assisted Human Reproduction Act, from 2004, prohibits the use of such material, absent written permission from the doner. Because the husband died suddenly, there was no written permission and, as a result, the Court of Appeal concluded that the reproductive material could not be used. 

Finally, the Court of Appeal allowed an appeal from a conviction for sexual assault. The appellant was a 29-year-old woman who was convicted of sexually assaulting a 13-year-old boy. Because of the age of the boy, he would have been unable to consent to the activity as a matter of law. 

The woman testified at trial that the boy had sexually assaulted her and that she felt paralyzed at the time and was unable to say no or cry out for help. 

The appeal was allowed on the basis that the trial judge had not properly instructed the jury on the impermissibility of applying myths or stereotypes concerning how a victim of a sexual assault would have behaved.

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

This week on Legally Speaking with Michael Mulligan:

In 1983 Tomas Yebes was convicted by a Vancouver jury of murdering his two adopted sons, ages 6 and 7. The conviction was upheld by the BC Court of Appeal and the Supreme Court of Canada.

Now, at the age of 77, after having spent a decade in jail, and 26 years on parole, thanks to work by the UBC Innocence Project, he has been acquitted. 

The two boys died as a result of a fire in their bedroom. The original conviction was based on an incorrect expert opinion that the boys had died of an unknown cause before the fire started. 

When he was sentenced, in 1983, Mr. Yebes turned to the prosecutor and said “I also realize you are doing your job, and although I know you have made a mistake, I hold no animosity. To my friends, they believe me. I beg them not to lose their faith because the truth will come out. I am innocent.” 

Section 696.1 of the Criminal Code permits the Minister of Justice to order a new trial for someone who has exhausted their appeals where they are “satisfied there is a reasonable basis to conclude a miscarriage of justice likely occurred.” 

Based on the evidence and submission of the UBC Innocence Project the Minister of Justice agreed that this test had been met and ordered a new trial. The Provincial Crown then agreed that Mr. Yebes should be found not guilty and called no evidence at his new trial.

Also discussed on the show are changes to the Provincial Court Family Rules in Victoria and Surrey, which will require parenting education, mediation, and a meeting with a family justice counsellor before many family law cases go to court. 

The hope is that more disputes can be resolved on a consensual basis, with the assistance of mediation and other services, rather than needing to proceed to court. 

Finally, a Court of Appeal case involving the Delta Hospice Society is discussed.

The board of directors of the Delta Hospice Society is opposed to medical assistance in dying and was attempting to amend the constitution of the society to turn it into a “Christian community that furthers biblical principles,” including the sanctity of life. 

To accomplish this, the board of directors was denying memberships in the society to people that didn’t agree with their proposal in order to prevent them from voting. 

The Court of Appeal upheld a decision by a Chambers Judge that the board of directors didn’t have the authority to deny memberships in the society for this reason.

Because virtually all of the funding for the Delta Hospice Society is provided by the province of British Columbia, and because medically assisted dying was legalized in 2016, it could lose its funding unless these services are made available on-site.

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

This week on Legally Speaking with Michael Mulligan: 

The Municipality of North Cowichan’s decision to refuse approval for the expansion of the Vancouver Island Motorsport Circuit is found to be unreasonable following a judicial review. 

At issue was whether a racetrack is a permitted use pursuant to the zoning that is in place. 

The proposed expansion of the facility was to be on land zoned in the same way as the land used for the initial track. 

The municipality approved the first track but then refused permission for the expansion with no meaningful explanation for the inconsistent decision. The judge found the inconsistent decision, without explanation, to be unreasonable. 

It’s important that there be predictability in administrative decisions so that people can plan their affairs. 

The next case discussed involved sentencing following a guilty plea to impaired and dangerous driving causing bodily harm. 

The man who pleads guilty was sentenced to two and a half years in jail, pursuant to a joint submission. 

A joint submission is a sentencing submission agreed to by both the Crown and Defence lawyers. It would take into account factors, including the strength of the Crown’s case and the circumstances of the accused person. 

The Supreme Court of Canada has directed that trial judges are required to impose the sentence agreed to by Crown and Defence unless doing so would bring the administration of justice into disrepute. This high threshold is important because if judges were routinely deviating from the terms of joint submissions, many fewer cases would resolve by way of people pleading guilty. 

Finally, the Court of Appeal concludes that the designation of someone as a vexatious litigant does not apply to the commencement of criminal charges. 

Someone can be designated as a vexatious litigant if they have a history of starting civil claims without merit. Such a designation requires the person to obtain prior permission from a judge before suing someone. 

A designation as a vexatious litigant does not, however, stop the person from swearing private information charging someone with a criminal offence. This is because the criminal procedure that allows for this is a matter of federal jurisdiction. Provincial laws respecting the designation of someone as vexatious litigants don’t have any application. 

In British Columbia, however, when someone swears a private information, Crown Counsel is required to either take over the prosecution or direct a stay of proceedings to stop the case. 

The charge approval standard applied by Crown Counsel in British Columbia has two parts: 

1) Is there a substantial likelihood of conviction? and
2) Is the prosecution in the public interest?

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

This week on Legally Speaking with Michael Mulligan:

For some legal purposes, corporations are treated like people: they can enter into contracts, own property, engage in litigation, and be charged with committing offences. 

Some constitutional protections also apply to corporations: the right to be free from “unreasonable search and seizure” and the right to a trial within a reasonable period of time for example. 

Other constitutional protections don’t apply to corporations including the right to “life, liberty and security of the person” or the right not to be forced to testify that is protected by section 11 (c) of the Charter.

In a recent case from Quebec, where a small corporation was subjected to a fine of more than $30,000 for performing construction work without a licence, the Supreme Court of Canada has now decided that corporations can’t benefit from the constitutional protection against  “any cruel and unusual treatment or punishment.”

You can’t be cruel to a corporation. 

The next case discussed involved an application for an annulment of a marriage. 

Following the marriage ceremony, the bride and groom attended a park, along with family members, for the purpose of photographs. A huge argument ensued, and the bride decided she didn’t want to be married.

Both parties applied for the annulment and pointed out that the marriage hadn’t been consummated following the marriage ceremony. 

In refusing the application, the judge pointed out that not consummating a marriage is an insufficient basis for an annulment. There needs to be evidence that the parties were incapable of consummating the marriage, not simply that they had not done so. 

Also discussed is an ongoing case that represents the largest loss that ICBC has ever suffered when hundreds of cars were damaged by acid that leaked onto a highway near Trail BC.

ICBC is suing everyone possible in an effort to recover the money they paid out for the damaged vehicles including the company that made the acid, the company that transported it, and the company that purchased it. Notably, ICBC is even suing the Province of British Columbia alleging the Ministry of Transportation or the Ministry of the Environment was partially to blame. 

The issue that was just decided by a judge involved the ongoing storage of the vehicles involved. ICBC has already incurred $1.6 million in storage costs keeping the vehicles at a private storage facility. As they are paying $54,734 per month to continue storing the vehicles there, ICBC wanted permission to dispose of the vehicles prior to the trial. 

The judge refused ICBC’s application and ordered the vehicles to be kept until March 31, 2021, so as to permit time for the defendants to inspect the vehicles. 

According to the judge, ICBC decided to “write off” any vehicle found to have “any visible signs of exposure” to sulfuric acid. 

The defendants are taking issue with whether all of the vehicles should have been written off on this basis.

If, as has been proposed, a no-fault car insurance system is adopted in British Columbia, ICBC would not be able to sue anyone to recover money from anyone in a case like this, even if it could show that they were careless.

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

This week on Legally Speaking with Michael Mulligan:

Sentencing considerations for dangerous driving causing bodily harm: why do we sentence someone who drives dangerously and has an accident that causes serious bodily harm differently from someone who drives in the same way but is lucky and does not cause an accident?

The Criminal Code sets out various factors, and principles, that a judge is required to consider including denunciation, deterrence, and rehabilitation that must be balanced. 

One sentencing option, called a conditional sentence, which often amounts to house arrest, would not appear to be an available sentencing option as a result of an amendment to the Criminal Code that prohibits such sentences where the theoretical maximum penalty would be 14 years, or more, in jail. Recently, however, the Ontario Court of Appeal found this restriction to be unconstitutional because it was overbroad and made it more difficult to reduce the number of aboriginal people sentenced to jail.

In Canada, aboriginal people are significantly overrepresented in jail and the Criminal Code directs judges to consider all reasonable alternatives to jail when sentencing offenders.

Also discussed is an estate litigation case which involved a separation agreement that required the deceased to maintain life insurance payable to an ex-wife until child and support payments ended. The deceased ex-husband changed the name of the beneficiary from his ex-wife, to that of his adult children from a former relationship. The separation agreement also required the ex-husband to “make Aeroplan points available” to his ex-wife for several years. 

Ultimately, even though the life insurance proceeds would have exceeded the amount of spousal and child support still owing, the judge concluded that the ex-wife should have received the money because of how the separation agreement was drafted. 

The ex-wife was not, however, entitled to compensation for the Aeroplan points, because there was no evidence, she asked to use them, and no evidence was presented with respect to their value. The case may stand for the proposition that, without evidence, Aeroplan points are presumptively worthless. 

Finally, a Builders Lien Act case is discussed in the context of COVID-19 related Ministerial Orders that stopped the running of limitation periods. The master that decided the case concluded that, even though a second ministerial order which replaced an earlier one, excluded the Builders Lien Act from the suspension of limitation periods, the suspension that was in place pursuant to the earlier Ministerial Order was still effective to provide additional time.

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

This week on legally speaking with Michael Mulligan:

While attempting to count ballots cast for the election of a board of directors for the Shon Yee Benevolent Association things went sideways when water spilled on a table during the vote count. 

Once this was cleaned up it was unclear whether a disputed ballot had been included in a count on a whiteboard, or where the ballot had been put. 

Various other ballots had been marked in unusual ways, including a mixture of tick marks, crosses, and in one case the number 11. 

Following a break for dinner, it was determined that the ballot box containing the disputed ballots had been unsealed by someone unknown, preventing a reliable recount. 

After two years of not having a board of directors, the matter was finally resolved by the BC Supreme Court. 

The series of unfortunate events that propelled the vote count into court should be a cautionary take for the counting of ballots in general elections. 

Also discussed was a case involving a man who shot a police officer in the hand and arm before running away in a Skytrain station. The man was charged with various firearms offences, which were not contested. A charge of attempted murder was, however, an issue. 

The essence of any charge of attempting to commit a crime is that the accused must have the intention to commit that very crime. A person may be convicted of murder who either intends to kill another person or who in the words of section 232(a)(ii) of the Criminal Code, “means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not”. But, an accused may only be convicted of attempted murder if it is proven that he intended to cause the death of the other person. 

If someone points a handgun at a vital part of another person’s body and shoots the person, it may be reasonable to presume that they intended the probable consequences of their actions. This does not, however, mean that in every circumstance where one person shoots another with a firearm, the shooter is guilty of attempted murder.

On the facts of the case discussed, the judge had a doubt about whether the accused actually intended to kill the police officer. The judge took into account several pieces of evidence, including the testimony of the accused. Other factors included where the police officer was shot, and that the accused did not shoot the officer again after when running past him despite having had the opportunity to do so. 

Finally, a Court of Appeal decision concerning an estate dispute is discussed. The appellant alleged the other party committed perjury but did not have evidence to support this claim. Making such a serious allegation, repeatedly, without evidence, was determined to be reprehensible conduct and the court awarded increased, or special, costs against the unsuccessful appellant.

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

This week on Legally Speaking with Michael Mulligan:

Two fathers with children and family members that have pre-existing medical conditions were unsuccessful in an application for an interim injunction to require British Columbia schools to implement additional COVID-19 protections such as social distancing, and mandatory mask-wearing in classrooms.

The judge on the application was not prepared to rely on media reports concerning the number of exposures in schools. 

In addition, the judge concluded that the fathers had failed to clearly identify the specific government decision they were seeking to have judicially reviewed.

Because the fathers both believed they were acting in the public interest by bringing the application, no cost award was made against them. 

Also discussed is a British Columbia Supreme Court decision upholding a conviction for using an electronic device while driving. 

The electronic device in question was an iPhone with a dead battery. The “use” was the “holding” of the device by wearing earbuds that were plugged into the dead iPhone. The judge concluded that the “holding” could include holding the earbuds in the driver’s ears. 

The driver left the earbuds in his ears to drown out some of the highway noise. He was not touching the iPhone at all. 

The underlying issue is that the provisions of the Motor Vehicle Act dealing with distracted driving by the use of electronic devices are so broadly drafted that they capture activity that wouldn’t actually be distracting. 

How judges are to interpret provisions like this is discussed. 

Ultimately, it’s a legislative responsibility to ensure that legislation isn’t overly broad. 

Finally, a Court of Appeal case involving the withdrawal of a guilty plea is discussed. The unfortunate fact pattern in the case involved a senior criminal lawyer who gave bad advice to his client concerning the guilty plea, after filing to reading a relevant decision that would have impacted the case, and then sending a junior associate to deal with the matter.

The mandatory ICBC no-fault insurance system that has been proposed for British Columbia is intended to save money by no longer spending time determining who was at fault in an accident.

Someone who caused an accident would receive the same benefits as the person they crashed into. 

Disputes would, however, still arise with respect to how seriously some was injured, or how much compensation they should be provided. It just wouldn’t matter if the person caused the accident or not. 

Currently, if someone has a dispute with ICBC, they would be entitled to go to court to have a judge decide what they are entitled to. 

The no-fault scheme would also prevent people from going to court in most circumstances, and disputes would be resolved by an entity called the Civil Resolution Tribunal. 

The Civil Resolution Tribunal was established to deal with minor strata disputes and very small civil claims of less than $5,000. It operates online in a fashion similar to a PayPal or eBay dispute resolution system. 

For very minor disputes, like those for which the Civil Resolution Tribunal was intended, this makes sense because deputes can be resolved quickly and inexpensively. Not every strata dispute over a BBQ on a patio needs to go to court. 

The Civil Resolution Tribunal is not, however, an appropriate mechanism to resolve more serious disputes that involve the provincial government, or ICBC, which is entirely owned by the provincial government. 

Unlike judges, who are appointed for life, and are independent of government, the adjudicators who work for the Civil Resolution tribunal are appointed by the government on renewable, short term, contracts of between 2 and 4 years. 

Someone who is dependent on the government for continued employment should not be deciding disputes that involve the government.

If you had a dispute with your neighbour, you would not want someone employed by your neighbour to decide the issue. 

As of April 1, 2019, the provincial government gave the Civil Resolution Tribunal authority to decide disputes with ICBC involving up to $50,000. 

A review of Civil Resolution Tribunal decisions from July 1, 2020, until October 7, 2020, shows that of 30 disputes involving ICBC, 27 were decided in favour of ICBC, and 3 were decided against ICBC.

Whether or not ICBC no-fault insurance is a good idea, disputes with a government-owned insurance company should not be decided by people who depend on the government for continued employment.

Also discussed on the show is a decision of the British Columbia Court of Appeal overturning a first-degree murder conviction. 

The conviction was based on entirely circumstantial evidence after the accused’s wife drowned in a lake.

The central issue on the appeal was the use a jury could make of statements the accused provided to the police concerning how his wife drowned. 

Ordinarily, if a statement by an accused person is disbelieved, it’s no evidence of any kind. Only in limited circumstances can a disbelieved statement be treated as evidence of guilt.

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

Because the British Columbia provincial election was called suddenly none of the political parties have candidates nominated in all ridings. As a result of COVID-19, many people have also requested mail-in ballots.

Without candidates having been determined yet, the mail-in ballots being distributed simply have a blank space to write in the name of the candidate you wish to vote for. 

When asked about the voting procedure, the premier incorrectly suggested that people could write in various things, including the name the party leader they wished to vote for. Unfortunately, unless the party leader happens to be a candidate in your riding, writing in the name of the party leader will result in a spoiled ballot. 

Section 123 of the Election Act does permit, on a write-in ballot, someone to indicate either the name of the candidate or the political party, they wish to vote for. The name of the party leader is not, however, a permitted alternative. 

The Election Act does expressly provides for write-in ballots to be counted even where the name of a candidate or political party is misspelled or abbreviated, as long as the intention of the voter is clear. 

On regular ballots, which include the names of the candidates, a selection should be made using a cross or tick mark opposite the name of the candidate you wish to vote for. 

Other marks should not be made on a ballot because, if they could reasonably be used to identify a voter, the ballot would be rejected. 

Also discussed on the show are provisions of the Elections Act that regulate third-party advertising.

Limits on how much a candidate can spend would not be meaningful if other people could spend money on an election without limit.

Unfortunately, the rules respecting third-party advertising are so restrictive as to have forced a pub owner from Kelowna to register so as to avoid fines for having a message printed at the bottom of receipts. The message reads “Oct. 24 vote that f*cker out!”

While the message wouldn’t cost the pub owner anything to print, the Election Act would require a fair market value to be assigned and would then result in a fine of twice this amount should the pub owner not register and comply with a host of regulator requirements.

For a transcript of the show, and links to the legislation discussed, follow this link.

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.

The premier of a province doesn’t actually have the authority to call an election. Authority to dissolve the legislature and call an election resides with the Lieutenant Governor.

Ordinarily, the Lieutenant Governor would call an election at the request of the premier. In unusual circumstances, such as those that currently exist in British Columbia, she will have a choice to make.

The circumstances where a request for an election could be refused by the Lieutenant Governor were described by Sir Alan Frederick Lascelles, a private secretary to King George VI. They are referred to as the Lascelles Principles: 

1)    The existing Parliament was still vital, viable, and capable of doing its job;

2)    A General Election would be detrimental to the national economy;

3)    He could rely on finding another Prime Minister who could carry on his Government, for a reasonable period, with a working majority in the House of Commons. 

These principles were articulated in relation to the British Parliament but would be applicable to Canadian legislatures. The second principle has been restated as detrimental to the public interest, rather than just economic interest. 

There are two historic examples of a request for an election being refused by a Governor-General.

In 1926, Canadian Prime Minister King asked then Governor-General Byng to dissolve parliament and call an election. The Governor-General refused and, instead, permitted the leader of the Conservative Party to form a government. 

In 1939, the Prime Minister of South Africa lost a vote to keep South Africa neutral in World War II. He asked the South African Governor-General to call an election. The Governor-General refused, the Prime Minister resigned, and the former minister of justice formed a government. South Africa joined the war against Germany. 

Currently, in British Columbia, the BC NDP and BC Liberal Party each have 41 seats. The Green Party has 2, there are 2 independents, and one former BC Liberal seat is now vacant.

Because an election in the middle of the COVID-19 pandemic might be viewed as being contrary to the public interest, if there was an alternative coalition presented to the Lieutenant Governor, she would need to choose between this, and calling an election, should there be a request for an election by the current premier. 

Also discussed on the show is a case of a marriage annulment being granted on the basis that the husband was impotent and unable to consummate the marriage, despite numerous attempts. The husband unsuccessfully opposed the annulment and was also required to pay his former wife costs for the court case. 

Finally, on the show, the case of a woman who falsely claimed to have been residing with a man for more than two years in order to qualify as his common-law spouse for the purpose of inheriting his home is discussed. The deceased man’s only son, who was abandoned as a child, successfully demonstrated that the woman hadn’t been residing with his estranged father for two years and, in so doing, inherited the house.

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