Legally Speaking with Michael Mulligan

What’s required for three people to be listed as parents on birth certificates, for children of a same-sex couple, who were conceived with sperm from a friend, who also wished to participate in raising the children?

The British Columbia Family Law Act attempts to contemplate a wide range of modern scenarios, involving surrogates and other assisted reproduction. Unfortunately, not every eventuality can be anticipated, as demonstrated by a recent court case.

Two women, in a long term committed relationship, with the assistance of sperm donated by a male friend, entered into a verbal agreement to conceive two children. Everyone involved agreed that all three people would cooperate in raising the children.

After one of the children was conceived, the trio reduced their agreement to writing.

Unfortunately, the Family Law Act specified that such an agreement needed to be in writing, prior to a child being conceived. As a result, the Registrar of Vital Statistics refused to register all three people as parents.

While the second child was conceived after the agreement was put in writing, another problem arose: the online form to register the birth of a child only has two spaces for parents’ names to be listed. The two mothers listed their names and the trio sent a letter, the same day, to the Registrar of Vital Statistics asking to have the father added to the registration. The Registrar refused to make the requested change.

While the judge who heard the case found that the Family Law Act attempted to deal with every possible circumstance, the language of the act permitted a judge to intervene where there was “any uncertainty” and this was sufficient to permit the wishes of all three parents to be accommodated such that they could all be listed on the birth certificate of the first child.

As for the online form, with only two spaces for parents to be listed, the judge utilized language that permitted the correction of a “technical error” so as to add the father to the birth registration. The online form has not been updated and parents in a similar circumstance should contact The Registrar of Vital Statistics directly, rather than filling out the form.

Also discussed is a Court of Appeal decision dealing with the impact on sentencing where someone pleads guilty but disagrees with aggravating facts being alleged by the Crown.

While a sentence would never be increased as a result of an accused person choosing to have a trial, there can be a reduction in sentence as a result of a guilty plea because it can demonstrate remorse, avoid a complaint from needing to testify, and save time. Where someone pleads guilty but denies aggravating factors alleged by the Crown, a hearing can still be required. How much, if at all, a sentence should be reduced in these circumstances can depend on whether the Crown is successful in proving the agitating circumstances alleged.

Finally, a case from Ontario is discussed. At the height of the housing boom in 2017, the defendant made an unconditional offer to purchase a home. The offer and an $80,000 deposit were accepted by the seller. Before the deal was set to complete the Ontario government introduced a 15% foreign buyers tax and the housing market fell by 20 – 30%.

The buyer did not complete the purchase and the sellers ended up selling the home for $600,000 less than the accepted, unconditional offer.

While the prospective purchaser argued that the contract had been “frustrated” by the introduction of the foreign buyers tax the Ontario Court of Appeal disagreed and ordered her to pay the $600,000.

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

In British Columbia witnesses who are testifying in court are required to choose between swearing a religious oath, or making an affirmation, to tell the truth. 

Children under 14 are only asked to promise to tell the truth. 

The origin of oaths, to tell the truth, was a belief that divine retribution would visit those who lied under oath. 

While witnesses are not told they have the option to swear an oath on something other than a bible, that is permitted.

Alberta recently announced that they are providing eagle feathers for witnesses who wish to swear an oath using those. 

In British Columbia courts have permitted a wide range of witness oaths including a Scottish Oath that involves a raised right arm, rather than holding a bible in the right hand, while swearing the oath. 

The origin of holding up your right hand seems to have come from Roman law where the penalty for perjury included having your right hand branded. 

One of the more elaborate oaths, that was previously used in British Columbia, by some Chinese witnesses, was the Chicken Oath. This involved the witness being handed a piece of paper with the following writing:

Oath made by … witness signs his name … being a true witness, I shall enjoy happiness and my sons and grandsons will prosper forever. If I give false evidence I shall die on the street, Earth will destroy me, and I shall forever suffer in adversity, and all my offspring will be exterminated. In burning this oath, I humbly submit myself to the will of heaven which has brilliant eyes to see. 

The following instructions were then provided for the Court Clerk:

The witness having signed his name twice, and a cock (male chicken) having been procured, the court (and jury, where applicable) adjourns to a convenient place outside the building where the full ceremony of administering the oath is performed. A block of wood, an axe of a knife, not less than three punk sticks, a pair of candles and a joss paper being obtained, Chinese candles are stuck in the ground and lighted. The oath is then read out loud by the witness, after which he wraps it in joss paper as used in religious ceremonies. The witness then lays the cock on the block and chops its head off, then sets fire to the oath from the candles and hold it until it is consumed. 

Efforts, in British Columbia, to accommodate differing religious preferences were certainly preferable to earlier English decisions, some of which refused to permit any evidence from “Infidels” on the basis that they did not believe in a God. 

Rather than adding more options for different religious oaths, and requiring witnesses to declare their religion, or lack thereof, before testifying it would make more sense to ask all witnesses to affirm or, as is the practice in some places, to “swear or affirm”, without inquiring which option someone is choosing, and without presenting them with a religious text of any kind. 

Continuing to permit witnesses to perform different religious ceremonies before giving evidence runs the risk that, particularly juries, might take this choice into consideration when assessing the evidence of a witness.

Also discussed is a British Columbia Supreme Court case that involved a Langley blueberry farm that went into foreclosure: the two brothers who owned it were found to have killed all the blueberry bushes with herbicide before turning it over to the new owners. 

Finally, the second application, in two years, by the Victoria and Esquimalt Police Board to have the Victoria and Esquimalt municipalities ordered to provide adequate law enforcement is discussed.

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

With Saanich schools closed for a third week as a result of a strike, 2019 amendments to the Labour Relations Code are discussed. These amendments removed a specific provision that declared “the provision of educational programs for students and eligible children under the School Act” to be an essential service.

This change was an example of the labour relations changes made each time the NDP is elected, or defeated, in British Columbia.

This same legislation, Bill 30, would also have included a provision removing the right to a secret ballot for union certification, however, the British Columbia Green Party advised the NDP that they would not support the other changes if that was included so it was removed.

While the language that remains in the Labour Relations Code dealing with strikes or lockouts that “poses a threat to the health, safety or welfare of the residents of British Columbia” has previously been interpreted by the Labour Relations Board to include education, in some circumstances, this would be more contentious. 

In order to engage any of the essential service provisions of the Labour Relations Code, action is required by the Minister of Labour: Harry Bains. He is the minister who introduced the legislation to remove the express provision designating education as an essential service. His background includes 15 years as an officer of a steelworkers-IWA union local. Unsurprisingly, he has not acted to engage the remaining provisions of the Labour Relations Code in order to end the strike.

Other legal news discussed include the announcement by the province of $2 million in funding to open 8 poverty law clinics.

The provincial funding will be provided through the Law Foundation, which will afford some degree of separation from the province as the poverty law issues the clinics will assist with could involve the provincial government as a party.

Prior to a 40% cut to legal aid funding in 2002, British Columbia had more than 40 legal aid offices, that assisted more than 40,000 people a year with poverty law issues. These issues often related to housing or disability claims. Since that time, no legal assistance was available for issues like these.

Finally, a donation of $30 million by a graduate of the UBC Law School is discussed. That donation included an agreement to rename the law school the “Peter A. Allard School of Law” and to include this name on degrees issued by the law school. Unfortunately, for Mr. Allard, it turns out that postgraduate degrees, such as LLM and PhDs, are not granted by the faculty of law, but rather the faculty of graduate and postdoctoral studies. These degrees never had the name of the law school on them and so, don’t include the new name of the law school. 

In an attempt to force UBC to include his name on these degree, Mr. Allard took the matter to arbitration. He was unsuccessful and is now going to court in an attempt to overturn the arbitrator’s decision. Unfortunately, this has created the appearance of transforming a generous gift into a contractual dispute over the sale of naming rights.

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

After almost two weeks Saanich schools are still closed as a result of a strike by support staff.

Support staff are seeking a wage increase to match other school districts. The support staff ended up with lower salaries as a result of past contracts that provided for greater benefits, instead of larger salary increases. 

The Saanich School District has offered all of the money they are permitted to pursuant to a provincial bargaining mandate. This amounts to an overall 6% increase in pay over a three-year period of time. Larger increases were offered for lower-paid employees, funded by, amongst other things, a reduction in benefits. The union has rejected the offer.

The dispute is at an impasse because other public sector unions in British Columbia have negotiated “Me Too” clauses in their contracts that provide that they would automatically receive a pay increase if any other public sector union is able to get more than a 6% pay increase. The effect of this would be to cost the province hundreds of millions of dollars for any pay increase of more than 6%. 

In some jurisdictions, public service employees have an unfettered right to strike. In other jurisdictions, there is no right to strike at all and collective agreements are arbitrated. In British Columbia, we have a “controlled strike” model. 

One of the controls on public service employee strikes is provided for in section 72 of the Labour Relations Code. That section permits services to be designated as “essential.”

Previous decisions of the Labour Relations Board have concluded that, in some circumstances, education is an essential service because an extended strike or lockout would cause an “immediate and serious danger to the health, safety, or welfare of the residents of British Columbia”. 

The process to designate a service as essential can commence by way of a request from one of the parties to the dispute. In this case, the Saanich School District could make a request to the chair of the Labour Relations Board. 

 Following a report from the Labour Relations Board, or on his own initiative without a report, the Minister of Labour can then direct the Labour Relations Board to designate a service as essential. 

The Labour Relations Board would then be required to determine exactly which services are essential.

A previous decision of the Labour Relations Board is discussed. This decision determined that disruption of educational services, for more than two weeks, may create immediate and serious danger to the welfare of the residents of British Columbia: the students who are impacted.

The mandate letter, sent to Harry Bains by the premier, when he was appointed as Minister of Labour, directs him to, “ensure that children get access to the quality public education they need to succeed…” 

Also discussed in the episode are limitation periods for police investigations. 

Except for some minor offences, such as public nudity, most offences can be proceeds with either summarily, or by indictment.

When charges are proceeded with summarily, there is a 12-month limitation period. This was recently extended from 6 months. 

The Crown can, however, choose to proceed with most offences by indictment and, in this case, there is no limitation period. There are, however, additional procedural protections that are engaged such as the right to a jury trial. 

Finally, a class action case against a number of British Columbia credit unions is discussed.

Links to cases discussed, and a transcript of the show can be found here. 

Canada, and British Columbia, have a very unfortunate history of racist legislation intended to restrict Chinese immigration. This includes the Chinese Immigration Act (1885), which imposed a head tax, the Opium Act (1908) which was passed following anti-Asian riots in 1907 that involved destruction in Vancouver’s Chinatown as well as Japanese neighbourhoods, and the Chinese Immigration Act (1923) which banned new Chinese immigration all together. 

It’s in this historical context that 2016 amendments the Property Transfer Act, which imposed the Foreign Buyers’ Tax, were challenged in court. 

Jing Li, a citizen of the People’s Republic of China, moved to Canada in 2013 to study public administration at the University of Saskatchewan. In 2016 Ms. Li purchased a property in Langley British Columbia. After paying a deposit, the Foreign Buyers’ Tax was implemented and she was required to pay an additional $83,850 in tax, on a $559,000 property, because she was not a citizen, or permanent resident, of Canada.

The court challenge brought by Ms. Li argued that the Foreign Buyers’ Tax was outside of the jurisdiction of the Province of British Columbia, because “Naturalization and Aliens” are matters of federal jurisdiction in Canada. She also argued that the tax was unconstitutional because it breached section 15 of the Charter which says: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 

A previous British Columbia court case concluded that section 15 of the Charter prohibits discrimination on the basis of citizenship, because it’s a characteristic analogous to the others which are listed. 

In rejecting her claim, the trial judge concluded that the Foreign Buyers’ Tax discriminated based on immigration status, and not citizenship, because permanent residence are exempt from the tax. 

The trial judge went on to conclude “While the majority of transferees after the Tax was enacted and until November of 2017 have been citizens of Asian countries, particularly China, that does not mean that the Tax adversely affected Asian buyers in particular.”

In reaching his decision, the trial judge refused to admit expert evidence from Professor Henry Yu, an Associate Professor at the Department of History at the University of British Columbia. Professor Yu’s report consisted of a historical review of discriminatory laws against Chinese in British Columbia and elsewhere. 

In rejecting Professor Yu’s report, the trial judge said this “In my view expert evidence is not required to establish that such discriminatory laws were enacted in British Columbia many years ago. The history of such laws would be readily available to counsel and the courts and could have been a matter that was dealt with in argument.”

The second case discussed in the show is a decision by Chief Justice Hinkson which struck down recent changes, made unilaterally by the British Columbia government, that prevented a plaintiff from presenting more than three expert witnesses as part of a motor vehicle accident claim case. 

The purpose of the rule change was to save ICBC money. 

While the provincial government does have authority to modify civil procedure rules, they are not permitted to do so in a way which would interfere with the core jurisdiction of a superior court. 

The reason for this restriction on government authority is to protect the independence of the judiciary. This independence would be of little practical consequence if the government was able to modify procedures or move decision making authority to other, less independent, bodies. 

A new BC Supreme Court policy concerning bans on publication, and closed courtrooms, permits automatic notification of applications for the media as well as a web site listing publication bans, to make it easier to determine if there is a publication ban is in place.

Judicial Recounts: what is required for an automatic, or discretionary, judicial recount, and how the recount proceeds when one is required. Issues on a recount include whether it’s possible to determine the intention of the voter and whether a ballot has been marked in a way that could identify the voter. 

Extradition: the requirements, and threshold, for extradition are discussed in the context of a recent decision dealing with an extradition request by the United States in a securities fraud case. For a judge to order extradition they need only be satisfied that a properly instructed jury could convict, and not whether there is a defence, or if a conviction is likely. If a judge finds that this threshold has been met, the Minister of Justice then decides whether to actually extradite the person.

Finally, an appeal leaves open the question of whether an interlock device is an electronic device, for the purpose of a distracted driving conviction. A driver can be required to install an interlock device to ensure they are not impaired by alcohol. The device needs to be held, and blown into, before a car will start and then, periodically, while driving to ensure continued sobriety. The case demonstrates the need to clarify the distracted driving laws in British Columbia. 

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

Legally Speaking with Michael Mulligan

Diplomatic Immunity – The wife of a US diplomat killed a British teenager in a car accident but was able to avoid prosecution and leave the UK as a result of diplomatic immunity. Topics discussed include the Vienna Convention on Diplomatic Relations and how this is implemented in Canada.

Other related issued include diplomats not having to pay parking tickets, how diplomats suspected of impaired driving are dealt with in Canada, and immunity from having to pay for parking in Victoria, BC for a list of people including vehicles bearing the flag or insignia of the Lieutenant Governor of British Columbia or the Senior Officer commanding the Canadian Armed Forces on Vancouver Island. 

Interestingly, as section 71 (11) of the City of Victoria Streets and Traffic Bylaw is drafted, the immunity from having to pay for parking doesn’t seem to be restricted to the actual Lieutenant Governor of British Columbia or the Senior Officer commanding the Canadian Armed Forces on Vancouver Island, but rather appears to apply to any vehicle bearing one of their flags or insignias. 

Also discussed is a recent agreement between the Government of BC, and the Association of Legal Aid Lawyers to modestly increase what legal aid lawyers are paid. The increase in pay is still much less than what the government pays lawyers doing prosecution, or other government work.

While the Government of BC will still be diverting more than half the funds raised every year from a special tax that was intended to fund legal aid, the recognition of the Association of Legal Aid Lawyers as a bargaining agent for lawyers doing this work may result in future improvements for a long underfunded system. 

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

Follow this link for a transcript of the show. 

Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070.

A new Supreme Court of Canada case, Fleming v. Ontario, concluded that the police did not have the authority to arrest a protester who was carrying a Canadian flag and walking down the road, in order to avert a possible, future, disruption. The police officers and the province of Ontario claimed that the police were authorized to arrest the man pursuant to the ancillary powers doctrine to “arrest someone who is acting lawfully in order to prevent an apprehended breach of the peace.” The Supreme Court disagreed and found that the arrest was not authorized by law. The wrongly arrested protester was awarded $139,711.90 plus court costs. 

Also discussed, was a recent case from Thailand in which a judge acquitted five Muslim men of murder and said “You need clear and credible evidence to punish someone. So, if you’re not sure, don’t punish them. I’m not saying that the five defendants didn’t commit the crimes, they might have done so, but the judicial process needs to be transparent and credible… punishing the wrong people makes them scapegoats.” The judge posted a statement on Facebook indicating that he had been pressured to find the men guilty despite a lack of evidence.

The judge then recited a legal oath, pulled out a pistol and shot himself in the chest. He survived and was rushed to the hospital where he is recovering.

Finally, a BC Supreme Court decision dealing with short term vacation rental, and a bylaw prohibiting them is discussed. The Thompson-Nicola Regional District sought an injunction to prohibit two cabins from being rented for short time periods. The bylaw the regional district relied on was passed in 2012. The cabins had been rented, for short time periods, since 2008. The cabin owners claimed that the bylaws prior to 2012 permitted short term rentals.

If the earlier bylaw permitted short term rentals, because then rentals have been going on continuously, since 2008, this would have been a lawful nonconforming use pursuant to section 528 (1) of the Local Government Act. This doctrine applies as long as the non-conforming use was continuous, with no break for more than six months. 

While the judge agreed that the short-term rentals have been continuous, since 2008, and would, therefore, have been a lawful nonconforming use, the bylaw in place in 2008 also didn’t permit short term rentals and, accordingly, that regional district obtained the injunction they were asking for. 

Legally Speaking is live on CFAX 1070 Thursdays at 10:30 am.

A transcript of the show can be found here.

Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070

Issues discussed include overrides of federal prisoner security classifications which result in inmates classified as medium security, being transferred to minimum security institutions. This was an issue recently as a result of two inmates escaping from the William Head Institution, which is a minimum-security facility, despite having been classified as medium security risks. One of the inmates had been convicted of escaping jail on five previous occasions. 

A 2001 report from Correctional Service Canada, that examined the reasons given for overriding inmate risk classifications is discussed. The report found that that was a 13.6% increase in escape rate when risk classifications were overridden and that in 30% of cases the reasons given for an override were inappropriate. 

Also discussed was a British Columbia Supreme Court decision involving the College of Midwives of British Columbia, and a woman who described herself as a Death Midwife. The woman’s website described death midwifery as a form of pastoral care. The College argued that the Health Professions Act prohibited the woman from using the term “midwife”. The judge in the case found that the act did prohibit the use of the term, however, it unconstitutionally interfered with the woman’s freedom of expression because it was overly broad and did not minimally impair the woman’s freedom of expression. 

Finally, the requirements for someone to be found not criminally responsible, as a result of a mental disorder, are discussed, along with the consequences of such a finding. In order to be not criminally responsible a judge would need to be persuaded that someone committed an act or omission while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act of omission or of knowing it was wrong.

Where someone is found to be not criminally responsible, they would be subject to detention, in a medical facility, until a review board concluded they did not pose a significant risk to public safety. In some cases, this could be for a much longer period of time then they would have served in jail. 

Legally Speaking with Victoria Lawyer Michael Mulligan on CFAX 1070

Issues discussed include jury deliberations, sequestration, the fact that the substance of jury deliberations are secret in Canada, what information is included in a charge to the jury, information not provided to the jury, including the possible sentence if there is a conviction, and how judges deal with jury questions or cases where a jury is unable to arrive at a unanimous verdict.

Also discussed is a recent test case from the British Columbia Court of Appeal: Tanious v. The Empire Life Insurance Company. This case dealt with a successful claim for disability insurance benefits, and the circumstances in which special costs can be awarded. Special costs, as distinct from party and party costs, represent the actual legal costs incurred by a party to a claim. The Court of Appeal upheld the trial judge, who awarded special costs on the basis that it was in the interest of justice for the institutional defendant to indemnify the impoverished and disabled claimant fully for the reasonable costs of pursuing her claim.

Note: On October 3 and 10, Legally Speaking will be live on CFAX 1070 at 11:00am, rather than the regularly scheduled time of 10:30am.