Podcasts about bc court

Provide your feedback here. Anonymously send me a text message. In this episode, Mike discusses the BC Court of Appeal decision R. v. Jaramillo, 2025 BCCA 77 where police brought a K9 along to arrest a man on an outstanding aggravated assault warrant. The dog never bit or touched the man, but barked. The man — a convicted criminal — said he was scared during the arrest. The judge found the use of the K9 breached the man's s. 7 Charter right to “life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” and reduced his sentence by 11 months to account for this Charter violation. When the Crown appealed the ruling, BC's top court weighed in on the matter. Did the dog display violate s. 7 or was the judge way off-base? Decision on Sentence (2024 BCPC 263)Decision on Sentence in a different matter (2021 BCPC 225)BC Provincial Policing Standard 1.4 Principles for Standards for Police Service DogsBC Provincial Policing Standard 1.4.1 Police Service Dogs — General RequirementsBC Provincial Policing Standard 1.4.1 Police Service Dogs — Threshold and Circumstances of Police Dog UseThanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

This week on Driving Law, Kyla Lee and Paul Doroshenko take a deep dive into two major developments in law and driving that show how privacy breaches and government decisions continue to ripple across BC and beyond. First, they unpack the BC Court of Appeal's decision upholding $15,000 in damages for each person affected by the ICBC privacy breach scandal—where an employee improperly accessed and sold private information that led to shootings and arsons. Kyla and Paul discuss why the Court rejected ICBC's arguments for lower payouts, and what this means for privacy law going forward. Then, they turn to the broader traffic landscape, from increasing Vancouver road chaos and police misbehaviour to the impact of new interprovincial trade rules, the upcoming federal election, and Trump's latest threat of tariffs on Canadian-made cars. They break down how all of this could reshape traffic patterns, trucking routes, and long weekends on BC's highways. Finally, in Ridiculous Driver of the Week, they highlight a Tennessee driver who crashed into a parked police car—after driving a quarter mile along the shoulder while reading a doctor's prescription. Check out the "Lawyer Told Me Not To Talk To You" T-shirts and hoodies at Lawyertoldme.com and "Sit Still Jackson" at sitstilljackson.com.

Privacy rights take center stage as the BC Court of Appeal delivers a powerful message to organizations handling sensitive information. When an ICBC employee sold policyholder data to criminal organizations, resulting in targeted arson and shooting attacks against numerous victims, the insurance giant fought tooth and nail to minimize compensation. The Court ultimately upheld a $15,000 award for each affected individual, establishing a crucial precedent that privacy violations cause significant harm even without visible damage.The ruling recognizes that having your personal details sold to criminals creates genuine suffering, even when physical attacks don't materialize. This landmark decision enforces the principle that employers bear responsibility for their employees' actions when handling sensitive data. For anyone concerned about their digital privacy, this case represents a significant step toward protecting personal information in an increasingly connected world.Meanwhile, the courts navigate the complex territory where art meets evidence. A murder trial in Surrey broke new ground by allowing expert testimony on drill rap—a subgenre where violent lyrics are often performative rather than autobiographical. The defence successfully argued that without understanding this cultural context, jurors might mistakenly interpret rap about violence as literal confessions. This raises fascinating questions about how we evaluate artistic expression in criminal proceedings and acknowledges potential racial biases in interpreting such content.In Victoria, justice persisted despite a defendant's violent refusal to participate in his own trial. Charged with beating someone with their own wheelchair during a robbery, the accused fought with sheriffs and refused to enter the courtroom. The judge's ruling that this behaviour constituted "absconding" demonstrates how our legal system adapts to maintain functionality even when faced with extreme disruption.These cases highlight how Canadian courts are evolving to address modern challenges while upholding fundamental principles of justice. Have you ever wondered how much your privacy is actually worth in the eyes of the law? This week's developments provide some compelling answers.Follow this link for a transcript of the show and links to the cases discussed. 

What if one impulsive moment could change a murder charge to manslaughter? Understanding the intricate nuances of Canadian law, we unpack the legal concept of provocation, especially its role in the justice system. Explore the far-reaching implications of the 2015 amendments under the Zero Tolerance for Barbaric Cultural Practices Act and the constitutional debates they spark. Discover a recent BC Court of Appeal case where a husband, embroiled in a complex narrative of alleged long-term abuse, challenges the application of these laws amidst claims of provocation.Tackle the vital theme of reputation and justice through a defamation case from Nanaimo, where false accusations against a city employee lead to a legal showdown. With insights from Michael Mulligan of Mulligan Defence Lawyers, we also scrutinize the Crown's disclosure obligations in criminal cases. Mulligan sheds light on the crucial responsibility to ensure fair trials by disclosing all pertinent information, even from different investigations. Join us for an enlightening discussion on these pressing legal issues, revealing their real-world impact and challenges.Follow this link for a transcript of the show and links to the cases discussed. 

The BC Court of Appeal says a law passed by the provincial government to stave off opposition to a supportive housing development in the Vancouver neighbourhood of Kitsilano is unconstitutional. Guest: Karen Finnan - Director and Spokesperson for Kitsilano Coalition  Learn more about your ad choices. Visit megaphone.fm/adchoices

Unravel the complexities of the criminal justice system as we confront two captivating legal stories in this episode. We begin with the unsettling case of a man whose violent spree of stranger attacks led to a legal battle over his sentence. Despite a traumatic past and serious substance issues, the BC Court of Appeal upheld his seven-year sentence, prompting us to question the balance between justice and rehabilitation. Explore the legal principles of consecutive versus concurrent sentences and the totality principle while grappling with societal challenges around providing treatment and shelter to those who resist it.The second chapter plunges us into the murky waters of a decades-old murder case that left $30,000 hanging in a bureaucratic limbo. Discover how procedural oversights and jurisdictional disputes have kept this money in legal no-man's land since 1992. Michael Mulligan from Mulligan Defence Lawyers joins us, offering expert insights into the ethical and legal implications of dealing with assets tied to criminal activities. As we discuss the mishandling of seized property—like a forgotten cell phone—the importance of adhering to time limits becomes strikingly clear. Prepare for a thought-provoking journey through the intricacies of law and its impacts on society.Follow this link for a transcript of the show and links to the cases discussed. 

Send us a textOn an all-new episode of Newsmakers, Louie Butko is joined by The Hamilton Spectator's long-time crime reporter Jon Wells. Among the topics discussed in their wide-ranging conversation include his recent feature 'Unclaimed' which dives into the shocking increase in the people who go unclaimed by next of kin after passing away and his new reporting on former 'ISIL Bride' and Hamilton-native Kimberley Polman currently facing terrorism charges in a BC Court. The two also discussed changes in the newspaper business over his time in the industry and how the Spectator has managed to pull through recent challenges.

Are machetes the next weapon to be banned in Canada? Join us as we dissect the provincial NDP Attorney General's request to the federal government following a tragic attack in Vancouver. We'll scrutinize the effectiveness of recent bail reforms and explore the peculiarities of Canada's current weapon prohibitions, including some surprising bans on items like nunchucks and certain missile launchers. Additionally, we delve into the federal government's controversial firearm buyback program, questioning the logic and execution behind these sweeping legislative measures.In our second segment, we turn our attention to the mandatory Indigenous training course for the Law Society, which has ignited a heated debate over the accuracy of claims that bodies were located at the  Kamloops Indian Residential School. We analyze a recent BC Court of Appeal decision and its broader societal implications, touching on the political dynamics at play. Finally, we welcome legal expert Michael Mulligan for an insightful conversation, offering thoughtful analysis and practical advice on an array of legal topics. If you're eager to understand the complexities of current legal issues from knowledgeable perspectives, this episode is a must-listen.Follow this link for a transcript of the show and links to the cases discussed.

 Surrey policing dispute costs BC taxpayers $250 million. GUEST: Wally Oppal, Former Attorney General, former judge from the BC Court of Appeal, and Lawyer for Boughton Law Corporation, headed the Surrey Police Transition Vancouver Bandits update GUEST: Dylan Kular, President of the Vancouver Bandits What will the legacy of the FIFA World Cup in Vancouver be? GUEST: Brent Toderian, City planner; Urbanist at TODERIAN UrbanWORKS; formerly chief planner of the city of Vancouver and now advises cities all over the world on city planning needs  CKNW Staycation - BC Legislature GUEST: Geri Mayer-Judson, Show Contributor & Talia Miller, Producer How does B.C get out of its economic slump? GUEST: Laura Jones, President and CEO of the Business Council of BC Being active when it's hard to breathe outside  GUEST: Geri Mayer-Judson, Show Contributor & Dr. Michael Koehle [COAL], Professor in the Dept. of Family Practice in the Sport & Exercise Medicine Division at UBC Learn more about your ad choices. Visit megaphone.fm/adchoices

GUEST: Wally Oppal, Former Attorney General, former judge from the BC Court of Appeal,  and Lawyer for Boughton Law Corporation, headed the Surrey Police Transition Learn more about your ad choices. Visit megaphone.fm/adchoices

Provide your feedback here. Send me a Text Message.In this episode, Mike discusses the BC Court of Appeal decision R. v. Donovan, 2024 BCCA 213, where an officer claimed a search — resulting in the discovery of GHB and methamphetamine — was to inventory an impounded vehicle's contents. Defence argued the evidence found during the inventory — a search related to concerns extraneous to the criminal law — should not be admissible in a criminal trial. Was the accused right? Or could the evidence discovered during the inventory search be used in a criminal prosecution?Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the BC Court of Appeal decision R. v. Vu, [1998] Docket: CA023384 (BCCA) where police suspected a man of dealing in illegal weapons but thought they did not have enough grounds for a warrant to search his house. Police then placed a phone call to the man telling him they had a search warrant and were on their way to his house. Police watched the man as he exited his house with a garbage bag, put it in his truck and drove way. He was subsequently arrested and his truck was searched, revealing illegal weapons, drugs, and jewelry. Could the police use the man's response to the phone call as part of their reasonable grounds for arrest? Was the search of the truck lawful?  Here's Vu's sentence appeal if you're interested.Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

What happens when the right to a fair and public trial clashes with the need to protect informer confidentiality? This episode of our podcast takes you through a riveting journey into the complex world of informer privilege and the right to a transparent judicial process. We scrutinize a landmark Supreme Court of Canada decision involving a secret trial in Quebec, where the Quebec Court of Appeal overturned the conviction due to abuse of process. Michael Mulligan from Mulligan Defence Lawyers joins us to dissect the intricate legal principles at play and ponder the broader implications for justice and transparency in Canada.But that's not all. We'll also cover a gripping case from the BC Court of Appeal, where a woman was awarded over $1 million in damages after being struck by a hockey puck. This case exemplifies the intricacies of personal injury law, highlighting the challenges in compensating for lost future income and non-pecuniary damages. With expert insights from Michael Mulligan, our discussion provides a comprehensive look at these pivotal cases, offering a deeper understanding of the Canadian justice system's complexities and the ongoing tension between individual rights and public interest.Follow this link for a transcript of the show and links to the cases discussed.

Join the riveting conversation with Michael Mulligan from Mulligan Defence Lawyers as we unravel the complexities of the presumption of innocence in a special episode that delves into the legal labyrinth following a man arrested for multiple carjacking incidents. Mulligan illuminates the difficult decision points for police post-arrest and lays bare the intricacies of bail assessment, particularly when the individual in question has no criminal history. As we dissect the safeguards of community safety versus an individual's right to freedom, our exploration will leave listeners with a deeper understanding of the criminal justice system's inner workings and the philosophical underpinnings of justice.The dialogue then pivots to a meticulous dissection of Canada's bail system, where we dissect real and hypothetical cases that bring the theory of law to life. From a mayor's alleged murder captured on film to repeated car thefts by an individual, the episodes lay bare the tension between the constitutional right to bail and the imperative to ensure public safety. The crescendo of our legal symposium examines a BC Court of Appeal case involving an ex-RCMP officer, scrutinizing the evidence, jury instructions, and the steadfastness of the justice system in upholding a conviction. This episode promises to offer listeners an unparalleled look into the nuances of crime and punishment, evidence analysis, and the weighty responsibilities shouldered by the courts.Follow this link for a transcript of the show and links to the cases discussed. 

Surrey police transition date announced: will this finally end the drama? GUEST: Wally Oppal, Former Attorney General, former judge from the BC Court of Appeal, and Lawyer for Boughton Law Corporation, headed the Surrey Police Transition Which cities made it to B.C's new housing naughty list GUEST: Ravi Kahlon, B.C's Minister of Housing City of North Vancouver makes it to B.C's housing “naughty” list  GUEST: Linda Buchanan, Mayor of North Vancouver City B.C puts public harms bill on hold…has big tech won? GUEST: Niki Sharma, Attorney General of B.C Calgary: the friendliest city in Canada? GUEST: Geri Mayer-Judson, Show Contributor Why are B.C's egg producers not putting their eggs in one basket? GUEST: Amanda Brittain, Director of Marketing and Communications with BC Egg Learn more about your ad choices. Visit megaphone.fm/adchoices

This week on the podcast, Natalia Angelini and Diana McBey discuss a case from British Columbia, Bautista v Gutkowski Estate, 2023 BCSC 1485.  In a pivotal decision, the BC Court of Appeal varied a will in favor of an estranged son, recognizing the testator's moral obligation. The case of Bautista v Gutkowski Estate reiterates the significance of moral duties in estate planning, especially towards one's children. Contact Us:  

DE Clarke/ Cortes Currents - On January 24th the BC Court of Appeal made known its decision in docket CA47620, the case of Anderson vs SRD. The three-judge panel found unanimously against SRD and in favour of Anderson. They found that SRD was wrong in refusing to indemnify Anderson's defence costs during a litigation against her in 2019, and wrong also in voting to censure her in that same year. In this four-part special radio feature we'll be revisiting the five-year history of this legal decision, and interviewing Noba Anderson about its significance — not just for Cortes island, but for all of BC.

In British Columbia, the Crown Counsel Association negotiates wages, salary hours or work, and working conditions for Crown Counsel. In 2018, the BC government decided to have Crown Counsel, rather than the police, conduct bail hearings at night and on weekends. Rather than negotiating with the Crown Counsel Association, the BC government made a unilateral decision to have Crown Counsel work evenings and weekends, claiming that the Attorney General had the power to do this under the Attorney General Act that says the Attorney General can "preside over" the Ministry of the Attorney General.  The Crown Counsel Association grieved this decision, and an arbitrator concluded the government didn't have the authority to act unilaterally or attempt to negotiate with individual Crown Counsel: it had to negotiate the change with the hours Crown Counsel was required to work. Rather than negotiating, the government appealed the Arbitrator's decision through a judicial review. The judge on the judicial review found that the arbitrator's decision was transparent, intelligible, justified and reasonable and so upheld it and ordered the government to pay costs to the Crown Counsel Association.  In addition to attempting to bypass collective bargaining with Crown Counsel, the provincial government is also engaged in litigation with the provincial government lawyers who are not Crown Counsel. After these lawyers voted to join a union, the government passed legislation forcing them into a different union they did not want to belong to. A neighbour dispute over a fence and access to repair it is also discussed on the show.After several years of refusing to permit access to their property for the purpose of repairing a fence, the neighbour on whose property the fence was located obtained an order pursuant to section 34 of the Property Law Act to permit them to access the neighbour's property for the purpose of maintaining the fence.  This section of the Property Law Act permits a judge to order access to property for the purpose of repairing a building, structure or improvement on adjourning land when the consent of the owner of the adjoining land is refused or cannot reasonably be obtained. The judge concluded that this section of the act, which was added in 2018, was applicable and that it also allowed the order to permit access on an ongoing basis without the need for repeated court applications.Finally, on the show, the BC Court of Appeal upheld the eviction of a tenant as a result of them installing a dishwasher without permission and, more significantly, covering a smoke detector up with a cardboard box. Section 47 of the Residential Tenancy Act permits a tenant to be evicted if the tenant has "seriously jeopardized the health or safety or lawful right of another occupant of the landlord and put the landlord's property at significant risk." The Court of Appeal rejected the tenant's argument that they had a right to time to fix the problem.  Follow this link for links to the cases discussed. 

In Vancouver, single room occupancy hotels are often a last resort before homelessness, but rising rents mean that many low-income residents lose their housing each year. City of Vancouver vacancy control bylaws designed to protect SROs were quashed by the BC Supreme Court in 2022. On Nov 7, that ruling is being challenged in the BC Court of Appeal. We speak about the case with Wendy Pedersen, director of the Downtown Eastside SRO Collaborative.

Lawyer Marty Moore takes us through a new case he's recently filed in BC about censorship at a Chilliwack School Trustee meeting in June. The client, he says, had her free expression rights violated four times in two minutes. And he takes note of a recent decision in the BC Court of Appeal where they ruled that a vaccine passport mandate case will proceed to trial. Marty says he hopes this will provide the Federal Court of Appeal some guidance as they consider the Peckford appeal on the federal travel vaccine mandate this week.Chilliwack School District on Youtube, June, 2023: Chilliwack School District Board Meeting - June 13, 2023Chilliwack School District Board of Educations TrusteesJustice Centre, Jun 27, 2022: Burjoski v. Waterloo Region District School BoardCBC, Sep 29, 2022: Debate over book bans in classrooms highlights limitations of school trustees' roleCity News, Jan 30, 2022: BC Supreme Court petition fails to remove controversial Chilliwack school trusteeXtra Magazine, Oct 18, 2022: In a historic first, an out trans man was just elected to a school board in CanadaChilliwack (School District) Election results Updated Oct 7, 2023City of Chilliwack 2022 Voter Turnout: Estimated eligible Voters, 69,997Justice Centre, Jun 14, 2023: Court hears challenge to censorship of school board trusteeTheme Music "Carpay Diem" by Dave StevensSupport the show

An application to find a union in civil contempt for breaching an injunction against making noise while picketing at three Vancouver Airport Hotels failed because of the wording of the injunction, which only prohibited noise above 75bBA if made by various specified devices. The evidence demonstrated that the noise was above the prohibited threshold but not if it was produced by specifically prohibited items: drums,  microphones, speakers or megaphones. Also on the show, costs were awarded against a strata corporation that embarked on ill-conceived litigation without a 3/4 majority vote to replace a building roof. The case confirms that even though one of the owners who were taken to court had a lawyer assist them pro bono, and others were self-represented, this is not a reason to deny costs being awarded. The reason for this is that costs are not only intended to help pay the legal expenses of a successful party, but they also serve other purposes: deterring frivolous actions or defences, encouraging conduct that saves time, encouraging settlement and the careful assessment of the strengths or weakness of cases. The judge dealing with the costs award further concluded that the strata corporation's lack of budget to pay costs also had no relevance.  If a court order is made to pay costs, and they are not paid, an order could be obtained to remove the funds from the strata corporation's bank account regardless of any budgetary considerations. Finally, the judge concluded that the owners who were awarded costs would not be required to contribute to the expense incurred by the strata corporation.Finally, on the show, the BC Court of Appeal has determined that the definition of a "person with a mental disorder" in the Mental Health Act includes someone who isn't displaying symptoms of the mental disorder when their involuntary detention is being reviewed.The Mental Health Act permits the involuntary treatment of people who have a mental disorder and who are a threat to themselves or others. The case involved a man with an extended history of paranoid psychosis and self-harming behaviours for which he had been repeatedly hospitalized and certified for involuntary treatment. The behaviours would include cutting and burning himself.The police had repeatedly taken the man to the hospital for treatment. He would receive antipsychotic medication that successfully prevented self-harm, but once released, the man would stop taking the medication and harm himself again. The Court of Appeal concluded that the definition of a "person with a mental disorder" should be interpreted in accordance with the purpose of the act and the fact that the symptoms of a mental disorder were being controlled by medication at the time of a review didn't mean that the person no longer met the definition. Follow this link for a transcript of the cases and links to the cases discussed. 

Starting in 2012, the Gabriola Island Local Trust started a legal effort to have an elderly couple remove a seawall that protects their waterfront property because it was less than 30 meters from the ocean. At a trial of the matter, the Gabriola Island Local Trust lost the case because the judge concluded there was a common-law right to protect property from erosion. The Island Trust didn't like that outcome and so appealed to the BC Court of Appel, which eventually overturned the first judge's order concluding that the Province of BC had authority, that it delegated to the Island Trust, to prohibit the seawall regardless of the impact on erosion. Following two additional years of litigation, the seawall was still in place and the Island Trust asked the BC Court of Appeal to start imposing fines for civil contempt of the order. During the intervening time, the wife who co-owned the property with her husband was diagnosed with dementia and passed away. Her 87 year old husband has numerous physical ailments and the couple's adult daughter had moved back to BC from Ontario in an attempt to help with the seawall issue. The daughter obtained an environmental and geotechnical assessment report which indicated that removing the seawall could cause environmental harm to the shoreline and would require the removal of several mature trees which had roots that had grown into the seawall. Unfortunately, the BC Court of Appeal judge dealing with the case concluded that the court no longer had any authority to change the order that required the seawall to be removed. The daughter then approached 10 different contractors to have the seawall removed. All but one denied to do the work and the one that did attend concluded his equipment wasn't adequate for the job. The daughter then tried to remove the seawall herself using a sledge hammer and jackhammer but was unsuccessful. She concluded the concrete structure was "about as strong as the Great Pyramid of Giza."As a result of all of this, the BC Court of Appeal judge imposed a smaller fine than was requested for contempt: $2,500. He also suggested that if the seawall wasn't removed by the end of October there could be another $7,500 fine imposed. How the case of the immovable seawall plays out may depend on the continued health of the remaining 87 years old owner. The order for removal was made against only his late wife and him. Also, on the show, an ongoing case of an Iranian Refugee who escaped that country and came to BC in 1995 is discussed. The man was successful and, in 2019 was able to purchase a home in West Vancouver for $6.6 million. The man had applied to become a Permanent Resident of Canada on three occasions, with the last application being filed in January of 2017. Because it took the government until February of 2022 to grant him Permanent Resident Status he was changed $1.32 million pursuant to the BC property speculation tax that is intended to discourage people from other countries speculating in BC real estate. The legislation that imposes the tax requires it to be applied to anyone who isn't a Canadian citizen or Prominent Resident. While the man involved is making a challenging constitutional argument against the tax, the real issue is that it cannot have been intended to apply to refugees who have lived in BC for 24 years. The case demonstrated the need to amend the legislation. Follow this link for a transcript of the show and links to the cases discussed. 

In this episode, Mike discusses the BC Court of Appeal decision R. v. Fong, 2023 BCCA 196 where a police officer authorized the arrest of a man believed to be a dial-a-doper.Did the facts as found by the trial judge meet the legal threshold of reasonable grounds? Was the officer's SUBJECTIVE belief OBJECTIVELY reasonable? Listen and judge for yourself. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

This week on Legally Speaking with Michael Mulligan:Only a tiny percentage of contracts ever end up in court. This is because contracts are intended to be agreements both parties wish to enter. If, for example, you agree to purchase a home from someone, both you and the seller presumably want to buy and sell the home for an agreed price. Nobody is required to force the home sale to complete as agreed.  For understandable political reasons, contracts to rent homes are often no longer the result of both parties wanting to continue with the agreement. As renters outnumber landlords, it's been politically popular to legislate terms of home rental agreements to do such things as limit or prevent rent increases, prevent rental agreements from having an end date or restrict the circumstances in which a landlord can end a rental agreement. The result of this, combined with high inflation and rising interest rates, is that many renters are not paying the market value of their homes. This has resulted in a strong financial incentive for landlords to evict tenants, sell properties, or otherwise get out of agreements to which they do not want to be a party. The BC Government has responded by attempting to impose penalties to force landlords to continue subsidizing rents for existing tenants. One of the few circumstances in which a landlord can end a contract to rent a home is if they, or a close family member, wish to move into it themselves.To prevent this exception from being misused, the BC Government has required landlords who end a contract to rent a home for this reason and who do not move into the home “within a reasonable period of time”, to pay the former tenant 12 months of rent. The substantial amount of money a former tenant might get has resulted in many applications. Between January 1, 2021, and April 30, 2023, there were 2,200 applications. In the case discussed on the show, the landlord couldn't move into their home for four months because he received a stop work order from Saanich for some renovations he was doing before moving in. He was required to provide architectural drawings and asbestos testing before completing the renovations. At an arbitration, an adjudicator awarded the former tenant $22,001.04. This was overturned on appeal to the BC Supreme Court and, eventually, the BC Court of Appeal. Also, on the show, the BCCA upholds a decision by the BC Review Board to keep a woman who was found not criminally responsible because of a mental disorder in a secure hospital. The woman suffered from treatment-resistant Schizoaffective Disorder, Bipolar Type, complicated by substance abuse. She had attempted to abduct a 4-year-old child from a bus believing the child was her own. That was not the first time she had done something similar. She has no insight into her mental disorder and continues to believe that she is the mother of “angel babies” that she needs to get back. Finally, on the show, the BC Court of Appeal found that a 4-year minimum sentence for manslaughter with a firearm was not “grossly disproportionate” to the appropriate sentence in the case being considered and, as a result, not unconstitutional. Because the case did not consider other reasonably hypothetical circumstances where someone could be subject to the mandatory minimum sentence, the provisions may need to be revised in a future case. Follow this link for a transcript of the show and links to the cases discussed. 

In this episode, Mike discusses the BC Court of Appeal decision R. v. Dhillon, 2023 BCCA 38 where a police officer stopped a man for traffic reasons but safety concerns led to a pat-down, an investigative detention for drug trafficking and the discovery of a loaded handgun in a man-purse. The man argued an "imminent threat" to an officer (or to the public) was necessary for a safety search to be lawful and that such a threat did not exist in this case. What did the BC Court of Appeal say about this?  Listen and learn. Your life may depend on it!Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the BC Court of Appeal decision R. v. Lundy, 2023 BCCA 133 where a police officer arrested a man he believed was trafficking in drugs based on a tip and surveillance observations, all filtered through his experience. But the trial judge didn't think the officer had enough grounds for an arrest, thereby arbitrarily detaining the man, and unreasonably searching him as an incident to the unlawful arrest. Would you make the arrest in similar circumstances? Listen and find out what BC's Court of Appeal had to say when it weighed into the matter.Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

This week on Legally Speaking with Michael Mulligan:The Supreme Court of Canada has created a new, very high hurdle for a judge to dismiss applications in criminal cases summarily without allowing the party making the application to call evidence. The case that gave rise to the issue involved an application for a stay of proceedings brought by two men found guilty of six murder charges. The trial judge refused to hear an application for the stay of proceedings based on several allegations, including sexual activity between police and witnesses, long-term solitary confinement waiting for trial, and the handling of informant information. The Supreme Court of Canada found that the judge should have permitted the accused to make the application and that judges can only refuse to hear such applications when they are “manifestly frivolous.” The term “frivolous” is intended to allow applications that will necessarily fail to be dismissed without hearing them, and that “manifestly” captures the idea that the frivolous nature of the application must be obvious. The Supreme Court of Canada recognized that an undue amount of court time is often spent determining whether an application should be permitted and that this isn't appropriate. When determining if an application is manifestly frivolous, a judge must assume that everything alleged occurred and that the most favourable inference from the alleged circumstances would be drawn.Also, on the show, a claim for wrongful dismissal brought by a manager of a used car dealership is dismissed. The manager, who was paid more than $25,000 per month, submitted two meal receipts for a total of approximately $250, claiming that they were for meals with other employees when they were, in fact, personal expenses. Despite being given two opportunities to come clean about what he had done, the manager did not. The business owner fired him, indicating that she had lost trust in the manager. While an employer can fire a non-unionized employee at any time, for any reason, if they do not have cause to do so, they can be required to provide either notice of the dismissal or payment instead of notice. In this case, the fired manager sued, claiming he was fired without sufficient cause. The judge hearing the case disagreed. They concluded that lying about the meal receipts and then refusing to acknowledge what he had done when confronted about them did constitute grounds for being fired. Finally, on the show, the BC Court of Appeal has ruled that the provisions of the Child, Family and Community Service Act that permit social workers unlimited access to private medical records, without a warrant, when dealing with child protection cases are unconstitutional. The BCCA found that there is a high expectation of privacy in medical records and that allowing social workers to access them to look for things such as treatment a parent might have received for mental health or substance abuse issues was not constitutionally permissible. The BCCA has allowed the government one year to amend the provisions in question to add adequate procedural safeguards to the provisions in question. Follow this link for a transcript of the show and links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:In 2013, a 28-year-old babysitter, and mother of four, was charged with murder when a 19-month-old drowned in a bathtub. The case against her was based on the opinion of a pathologist who alleged that “there is no benign explanation” for injuries sustained by the child and that the child had “extensive bruising” that is “typical of abused children.” The babysitter, who had “Borderline Intellectual Functioning,” agreed to plead guilty to criminal negligence causing death to avoid the possibility of life in prison if she was convicted of murder. She served a year in jail, lost custody of her four children, and became homeless. The BC Court of Appeal overturned her conviction. It directed a judicial stay of proceedings because it was recently determined that Crown Counsel who prosecuted the case failed to disclose to the babysitter of her lawyer that an investigation into the pathologist conducted by Alberta Justice concluded that there were serious concerns concerning the pathologist's opinions. Crown Counsel in BC received the 140-page report from Alberta Justice concerning the pathologist but failed to disclose it to the babysitter of her lawyer as they were required to do. In addition, it was revealed that the RCMP had received documentation concerning the 19-month-old having been hospitalized a few weeks before the death with a suspected brain infection that resulted in the sudden loss of balance and hypertonia (abnormally increased muscle tone resulting in rigidity). The RCMP did not disclose this material to either Crown Counsel or the defence.  In criminal cases, the police, and Crown Counsel, have a legal obligation to provide disclosure of all evidence in their possession to the defence. Their failure to comply with this obligation resulted in a misarrange of justice and irreparable harm to the babysitter and her children. Also, on the show, a plan to create twelve “hubs” across BC to address repeat violent offending is discussed. As described, there are some positive elements to the proposal, including increased funding and plans to improve information sharing. The news release with respect to the plan does raise concerns because it suggests that the hubs will be comprised of not only police and probation officers but also “dedicated Crown Counsel.” Depending on how this is implemented, it is a concern. In Canada, Crown Counsel is independent of the police. Police conduct an investigation and then provide a report to Crown Counsel, along with whatever evidence they have collected. Crown Counsel then determines if criminal charges should be pursued. This system helps guard against tunnel vision and allows for independent decision-making.It would be undesirable to have Crown Counsel embedded in hubs with the police and probation officers as they would then be called on to make prosecutorial decisions concerning cases where they were part of the investigation. Follow this link for a transcript of the show and links to the cases discussed. 

In this episode, Mike discusses the BC Court of Appeal decision R. v. Wilkinson, 2023 BCCA 3 where officers chased down a man who fled on foot as they drove by in an unmarked police car late at night in a high crime area. But the officers were not responding to a reported crime nor did they have a specific crime in mind when they took up pursuit.  Was the reasonable suspicion standard justifying an investigative detention met? If you are a proactive police officer who likes to investigate and prevent crime rather than simply react to citizen reports of it, then you will want to listen to this. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

This week on Legally Speaking with Michael Mulligan:Unlike in the United States, where property rights are constitutionally protected, there is no similar protection in the Canadian Charter. Various provinces, including British Columbia, have set up civil forfeiture regimes that permit property to be seized absent any criminal conviction. Civil forfeiture can occur based on a civil standard of a balance of probabilities, rather than proof beyond a reasonable doubt. In British Columbia property can be seized if the government can prove that it's probably the “proceeds of unlawful activity” or an “instrument of unlawful activity”. In a recent decision, the BC Court of Appeal found that it was permissible for the provincial government to seize property on the basis that it would probably be used, in the future, for unlawful purposes even if there was no evidence that it had been used for unlawful purposes in the past. While seizing property on the basis that it is “likely to be used to engage in unlawful activity” in the future, on a civil standard of probably, may be constitutionally permissible, the public policy question that should be asked is whether this is fair or appropriate.When courts review legislation, they are not deciding if a law is fair or a good idea. The standard of review is whether the legislation is constitutionally permissible. Also, on the show, a case involving a sentence imposed by a judge for manslaughter, after a jury acquitted an accused of murder, but convicted of this lesser included offence is discussed. The case involved a 74-year-old man, with no criminal record, who shot a roommate who had engaged in frequent violent, threatening and unpredictable behaviour. On the evening in question the roommate had a dispute over rent and said that he would be dealing with the accused at midnight. When, at midnight, the roommate announced that the accused's time had come, and did not stop, the accused shot and killed him with a revolver. When a jury renders a verdict, the judge hearing the case needs to make findings of fact consistent with the verdict and sentence the accused accordingly. In the case discussed, the Crown asked the judge to find that the case was a “near murder” while the defence urged the judge to conclude it was “near self-defence”. The trial judge took a middle position and sentenced the then 77-year-old to 7 years in jail.The 7-year sentence was upheld on appeal. Finally, on the show, a man who was blocking a road to prevent logging was acquitted on a charge of contempt of court because the Crown didn't prove that the man had knowledge of the court order he was alleged to be in contempt of. The RCMP, who were enforcing the injunction, read only a summary of the injunction to the man before arresting him.The Crown argued that the doctrine of wilful blindness was applicable.  The judge concluded that this was not applicable as there wasn't evidence to support this. Wilful blindness could apply if, for example, someone plugged their ears or closed their eyes when an injunction was read or provided to them in writing. The judge hearing the case pointed out that it's a criminal offence to obstruct a highway for the purpose of compelling another person to abstain from doing anything they have a lawful right to do, and that knowledge of the law is presumed.  Because the prosecution was for contempt, rather than breaching section 423(1)(g) of the Criminal Code, the accused was found not guilty. Follow this link for links to the cases discussed. 

On this episode Kyla and Paul looks at what constitutes first degree murder when a vehicle is involved. They also look at a BC Court of Appeal decision about Jeremy Maddock and the limits of what a non lawyer can do practicing law. Follow Kyla Lee on Twitter: twitter.com/IRPlawyer Follow Kyla Lee on Instagram: instagram.com/kylaleelawyer www.vancouvercriminallaw.com

This week on Legally Speaking with Michael Mulligan:Following 7 days of hearings, with 79 pages of notices of application, responses to applications, and pleadings, 13 affidavits totalling more than 500 pages, 67 authorities, and over 90 pages of written submissions, a BC Supreme Court Judge has concluded that the District of Central Saanich did not have authority, pursuant to its Tree Protection Bylaw, to prevent a farmer from clearing trees to expand their farm. The judge concluded that while municipalities have some authority to regulate tree removal, the Community Charter, which delegated this authority to municipalities, does not permit such bylaws or regulations to prevent trees from being removed to the extent necessary to permit a property owner from engaging in “development to the density permitted” by applicable zoning. The District of Central Saanich argued, unsuccessfully, that the words “development” and “density” should be narrowly construed so as to apply only to the construction of homes or buildings. The judge hearing the case concluded that the terms “development” and “density” include more than the construction of homes or buildings and that these terms include things such as the development of a farm to increase crop yields. As the property owners pointed out, and the judge accepted, one cannot farm in a forest. Also on the show, a case involving a vulnerable, elderly, woman who signed away her home as part of an unconscionable purchase and sale agreement is discussed. The woman, who was 84 at the time of trial, was persuaded to sign a transfer of her home after she had moved into an assisted living facility. The sale agreement said that the woman would receive $485,000 but the terms of the sale provided that no payments would be made for 24 months and then, over between 20 and 40 years, she would be paid from profits of a proposed winery. Two of the people involved in the purchase took the woman to a notary, rather than a lawyer, to have the home transferred. Unlike lawyers, notaries don't provide legal advice. This notary made no inquiries about the transaction, made no inquiries about the relationship between the woman and the men who brought her to the notary's office, made no inquiries about the woman's capacity, did not recommend legal advice, and made no notes. The notary charged $50 and executed the document transferring the woman's home to the would-be wine company. At trial, the judge found that the notary had breached even the duty of care the notary owed the elderly woman and ordered that the notary pay the woman for the home.The BC Court of Appeal agreed that the notary had breached his duty of care but found there was insufficient evidence for the trial judge to have concluded the woman would not have signed the paperwork to transfer her home even if she had been told that she should obtain independent legal advice before signing the transfer papers. The case is a cautionary tale about the risk of harm to vulnerable people when significant transactions occur without proper legal advice. It's not likely a coincidence that the men involved in the unconscionable purchase of the home took the woman to a notary to execute the transfer, rather than a lawyer who would be expected to make further inquiries and offer the woman legal advice about what she was being asked to sign. Follow this link for a transcript of the show and links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:A University of Victoria instructor pleaded guilty to criminal contempt for blocking a road by chaining himself to a log. Other people who had been convicted in similar circumstances have been sentenced to a period of probation with 100 hours of community work service. Following the man's arrest, his bag, containing $1605 of his camping gear,  was “repeatedly run over by a road grader”. Judges can consider the “collateral consequences” of a charge when determining an appropriate sentence. As a result, the man's sentence was ordered to complete only 70 hours of community service: an effective reduction of $53.50 / hour for the run-over camping gear. Also, on the show, statutory exemptions from paying municipal property tax are discussed. In British Columbia, municipalities determine their budget and set mill rates for different kinds of property. The mill rates are multiplied by every $1,000 in property value, as determined by BC Assessment. Because of how this system works, the amount of tax payable by each property owner depends on the relative value of properties and how many properties there are to distribute the tax burden. Section 220 of the Community Charter includes a list of kinds of properties that enjoy a statutory exemption from paying any property taxes. They include hospitals, schools, graveyards, and property owned by the provincial government. It wouldn't be sensible if municipalities could impose very high property taxes on the legislature building, for example. Section 220 (h), however, exempts property owned or leased by religious organizations from paying any municipal tax. The result of this statutory exception is that all other property owners in a municipality are required to pay more in property tax to subsidize religious organizations that are paying nothing. In addition to the unfairness of requiring all other property owners to subsidize religious organizations, the exemption may be inconsistent with section 2 (a) of the Charter, which provides for “freedom of conscience and religion”. This section has been interpreted to include freedom from being required to engage in religious activity.In a case called R. v. Big M Drug Mart Ltd., the Supreme Court of Canada held that the Lords Day Act, which required businesses to be shut on Sunday, contravened section 2 (a) of the Charter. This compelled business owners who were not religious or who worshiped on days other than Sunday to close or pay a fine.There would be a compelling argument that requiring property owners to pay higher property taxes to subsidize religious organizations is unconstitutional.   Finally, on the show, a new BC Court of Appeal decision expanded the scope of how judges should interpret section 718.2(e) of the Criminal Code. This section provides that when sentencing someone, a judge should consider all available sanctions other than imprisonment “with particular attention to the circumstances of Aboriginal offenders.”The court reduced a sentence from 5 years to 4 years in jail for a Métis man convicted of aggravated assault for an unprovoked stabbing.The accused in the case had a horrific childhood, primarily because of his non-indigenous stepfather. The Court of Appeal concluded that the man had a “significantly reduced level of moral blameworthiness” and had no difficulty inferring that “Canada's colonial history and assimilationist policies played a role in bringing Mr. Kehoe before the court.”Follow this link for a transcript of the show and links to the cases discussed. 

Human rights concerns with the use of School Liaison Officers in B.C. schools Ali Chaudhri, Works with Youth At Risk and discusses why school liaison officers are important to the safety of students across the province. Surrey council to revisit police transition issues at Monday's meeting Wally Oppal, Former Judge, BC Court of Appeal, and former Attorney General Of BC discusses the police transition in Surrey. Will the Surrey Police Service be allowed to operate or will the Surrey RCMP continue as Surrey's police force? B.C. Housing has been undergoing a forensic audit for months, premier says  Dr. Julian Somers - SFU Distinguished Professor of Health Sciences discusses the current state of B.C.'s housing The Top Christmas movies of 2022 and what holiday themed programming is on streaming this Christmas?  Rick Forchuk, Film Critic and Blogger at RicksPicks.ca gives his best Christmas movies of 2022 Surrey Food Bank says they need more supply of culturally appropriate food Nancy Pagani-Surrey Food bank Executive Director discusses the need for more culturally appropriate food at the Surrey Food Bank. Learn more about your ad choices. Visit megaphone.fm/adchoices

Wally Oppal, Former Judge, BC Court of Appeal, and former  Attorney General Of BC discusses the police transition in Surrey. Will the Surrey Police Service be allowed to operate or will the Surrey RCMP continue as Surrey's police force? Learn more about your ad choices. Visit megaphone.fm/adchoices

In this episode, Mike discusses the BC Court of Appeal decision R. v. Chen, 2022 BCCA 296 where it is considered a “best practice” for a police affiant to educate an authorizing judge about how the law operates in an application to intercept private communications. Although an affidavit may satisfy the requirements that trigger the exception to investigative necessity under s. 186(1.1) of the Criminal Code, it would seem a police affiant is now being asked to school a judge by drawing their attention to  the law as it applies. If that's what it takes, I suppose this "advice" should not be ignored or you may run the risk of having your authorization struck down. _______________________Criminal Codes. 186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied(a) that it would be in the best interests of the administration of justice to do so; and(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.Exception for criminal organizations and terrorism offences(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to(a) an offence under section 467.11, 467.111, 467.12 or 467.13;(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or(c) a terrorism offence.Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

This week on Legally Speaking with Michael Mulligan:Non-pecuniary damages are compensation for personal injury losses that have not required the outlay of money. The purpose is to compensate injured people for pain, suffering, disability, inconvenience, and loss of enjoyment of life. They are also referred to as compensation for pain and suffering. Such damages are distinct from pecuniary damages for things such as lost income, the cost of care or special damages for things like the cost of medication or medical equipment. In 2002 the BC Court of Appeal, in a case called Brisson v. Brisson, decided that juries shouldn't be given instructions from the trial judge with respect to what range of non-pecuniary damages should be awarded. The idea was that this should be left for the jury to decide based on the evidence rather than having judges influence this. When a judge is deciding on the amount of non-pecuniary damages, they would consider how much has been awarded in previous cases to achieve some measure of consistency. Another factor is that, in 1978, the Supreme Court of Canada, in a series of cases often referred to as the trilogy on damages, capped non-pecuniary damages at $100,000. The purpose of the cap was to reduce the cost of car insurance. The cap has increased in accordance with inflation but remains in place. The maximum amount that can be awarded in catastrophic cases is now approximately $400,000. Because juries are given no instructions about the cap or what has been awarded in previous cases, it is not uncommon for there to be appeals when a jury award is higher than in similar cases or above the cap. In the case discussed on the show, a jury awarded a single mother who was injured in a car accident $350,000 in non-pecuniary damages as a result of injuries that persisted for at least ten years, which caused ongoing pain, the loss of ability to physically care for her children or run a daycare business. On appeal, two of the court of appeal judges hearing the case reduced the award to $250,000. A third judge would have reduced the award to $200,000 while criticizing the lack of guidance provided to the jury. The public policy question this all raises is who should decide how much compensation is appropriate: juries or judges. In BC, because of the change to ICBC no-fault insurance, there is no longer any compensation for pain and suffering at all. Someone who is injured would only receive reimbursement for financial losses. Had the injury in the case discussed occurred now, the badly injured mother would have received no compensation other than for her pecuniary losses. Also, on the show, another split decision from the BC Court of Appeal is discussed. In this case, the court was reviewing a trial judge's decision in a sexual assault case not to permit evidence about prior sexual activity to be considered. The case involved a married couple who were in the process of separating after the husband told his wife that he was having an affair. The wife claimed that the husband sexually assaulted her when they were living in separate bedrooms in the home. She told the police that they had engaged in consensual sexual activity the day before the allegation. At trial, she claimed that there had been no sexual activity for two weeks prior to the assault.One of the Court of Appeal judges found that the accused husband should have been permitted to ask questions about the inconsistency. Two other judges disagreed. As a result of the split decision, the husband will be allowed to appeal to the Supreme Court of Canada. Follow this link for links to the cases discussed.

This week on Legally Speaking with Michael Mulligan:The British Columbia Medicare Protection Act purports attempts to protect Medicare by prohibiting any doctor from charging any more than what Medicare pays for any service that it covers and effectively prohibiting people from purchasing private insurance for any of these services. These market interventions, combined with insufficient funding for Medicare, have resulted in the rationing of the services that are available by requiring people to wait for treatment. While wealthy people can avoid waiting for treatment by traveling to the United States and paying privately, middle-class people are unable to purchase private health insurance and are forced to wait. A constitutional challenge to the Medicare Protection Act was recently dismissed by the BC Court of Appeal despite evidence that even for the most serious category of medical conditions defined as “patients have severe pain or acute conditions, risk of permanent functional impairment, tumour/carcinoma/cancer/high risk of malignancy, or time sensitivity”, 72.2% were required to wait longer than the maximum acceptable wait time defined by the government. The legal challenge was brought on the basis that the Medicare Protection Act violated patients' constitutional right to life and security of the person. Even though the BC Court of Appeal Judges accepted that some patients would die because of the Medicare Protection Act, they were at pains to point out that they did not have the authority to determine if the legislation was good public policy. They could only determine if the legislation was so harmful that it was unconstitutional.As discussed on the show, the judges hearing the case concluded that while the legislation breached patients' right to life and the security of the person, it did so in a constitutionally permissible way. It's likely that the case will proceed to the Supreme Court of Canada. Also on the show, another member of the Rainforest Flying Squad was sentenced after being convicted of criminal contempt of court for blocking a logging road in violation of an injunction. As there are more than 400 people being prosecuted for criminal contempt, the series of sentencing decisions that have resulted have afforded interesting insight into the factors to be considered in such cases. In the case discussed on the show, the trial judge concluded that the fact the accused was convicted following a trial, rather than pleading guilty, was not a significant factor in sentencing. In addition to the three days the accused had already spent in jail, he was sentenced to 12 months of probation, including 65 hours of community work service. Finally, on the show, a BC Court of Appeal decision allowing an appeal from a 6-month jail sentence following a conviction for possession of a small quantity of drugs for the purpose of trafficking is discussed. The trial judge had felt obliged to impose the jail sentence because of earlier Court of Appeal cases which had concluded that this should be the outcome absent exceptional circumstances. Follow this link for a transcript of the show and links to the cases discussed. 

Travel insurers are seeing jumbo-jet-sized losses thanks to an onslaught of claims from Canadian travellers experiencing flight delays and cancellations. The Bank of Canada (BoC) kind of underestimated just how bad inflation was getting—and is now playing catch-up as it serves up a series of jumbo rate hikes. Long hospital wait times may be the bain of Canada's health care system, but they're not unconstitutional according to yesterday's BC Court of Appeal ruling. The Peak Daily is produced by 306 Media Productions. Hosted by Brett Chang and Jay Rosenthal.

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Happy Canada Day! On this long weekend, Kyla and Paul look at certificate evidence and the role it plays in red light camera tickets. They look at a BC Court of Appeal case involving Thomas Harding and agree with the decision! Follow Kyla Lee on Twitter: twitter.com/IRPlawyer Follow Kyla Lee on Instagram: instagram.com/kylaleelawyer www.vancouvercriminallaw.com

This week on Legally Speaking with Michael Mulligan:Twenty-five years ago, a man and his family moved into a home they had built in the Highlands with only a temporary occupancy permit. A final occupancy permit was never obtained, and the lack of compliance was noted on title. As his wife passed away and his children had moved out, the homeowner decided it was time to sell the home. The homeowner hired a contractor to complete some repairs including work on some badly weathered decks. The agreement to do the work was oral and the scope of the project changed several times. The contractor was asked to replace two smaller decks completely but, to save money, only replace the decking on a large main deck. The contractor pointed out to the homeowner that the structure of the main deck was rotten but agreed to continue replacing only the decking.When the home was listed for sale, a building inspector was called by a real-estate agent and several deficiencies were noted, including the rotten main deck. The homeowner was upset that the building inspector had attended and demanded that the contractor replace the main deck as his own expense. The contractor refused because he had only been hired to replace the decking and litigation ensued. Following a three-day trial, the judge concluded that while the contractor wasn't responsible for the full cost of replacing the main deck, he shouldn't have proceeded with replacing the decking given the rotten structure. The contractor was ordered to pay for the wasted time and decking material. Because the homeowner sued in Supreme Court, seeking the full cost of a new main deck, and was awarded only $5,175, he is unlikely to receive costs that would ordinarily be awarded to a successful party because the amount awarded is within the jurisdiction of Small Claims Court. The legal costs of the three-day trial are likely to have been substantially more that the amount awarded. The contractor represented himself at trial. Also on the show, the BC Court of Appeal resolved a dispute over an estate that occurred because the deceased didn't have a valid will. The BC Wills, Estates and Succession Act has provisions that deal with who should receive an estate when someone dies without a will. If someone has a spouse and no descendants, the estate passes to the spouse. The central issue on the appeal was whether the man who had lived with the deceased was her spouse. The Wills, Estates and Succession Act provides that when someone is in a “marriage like relationship” for two years prior to someone's death is their spouse. There are a variety of factors that courts have looked at to decide if a relationship is “marriage like”.The trial judge focused on the fact that the man and woman didn't engage in a conjugal relation and concluded that the man wasn't a spouse. The Court of Appeal disagreed and pointed out that there should not be a checklist of factors and that relationships are diverse.  The man shared a bed with the deceased for three years prior to her death. He took her to hundreds of medical appointments, did the grocery shopping, they shared meals and celebrations together and he testified that he loved her. While, ultimately, the result is likely to have been in accordance with the deceased woman's wished, several years or litigation and uncertainty could have been avoided if she had prepared a proper will. Follow this link for a transcript of the show and links to the cases discussed.  

This week on Legally Speaking with Michael Mulligan:When the divorced father of an adult child with learning disabilities was diagnosed with terminal cancer, he established a trust with $750,000 to provide for his son following his death. As he had been through an acrimonious divorce, the father was concerned that his ex-wife did not get access to the funds for her own purposes. To prevent this the father made his two sisters trustees with broad discretion to use the funds to assist his son. The ex-wife, with whom the son lived, had the son sign a power of attorney permitting her to commence a lawsuit on behalf of the son seeking to remove the sisters as trustees and to take over the administration of the trust herself. A trustee has a fiduciary relationship with the beneficiary of a trust. That means that the trustee must make decisions that are in the best interest of the beneficiary and not themselves. The ex-wife's complaints included that the trustees were not paying for everything she wanted them to.The sisters were concerned about the funds lasting long enough to take care of the son for the rest of his life.For their part, the sisters offered to have the administration of the trust turned over to a trust company if the judge concluded that was best but did not wish the ex-wife to have control over the funds as that would have been contrary to their late brother's wishes. The judge concluded that the sisters had been acting responsibly and in the best interests of the son and that there was no basis to have them replaced as trustees. Also on the show: brevity in legal arguments is not only good advocacy but, in some cases, as rule.In the Court of Appeal and the Supreme Court of Canada, there is both a written argument, called a factum, as well as an oral argument. There is a size limit for factums. In civil cases, in the BC Court of Appeal, the limit is 30 pages. If someone wants to file a longer factum, they must obtain permission from a judge. In the case discussed, an appellant attached a draft 82-page factum to an application for more space. The application was denied. The judge reluctantly permitted the appellant to file a 40-page factum but ordered that they would need to pay costs to the other parties who attended the application.Finally, on the show, a case involving a financial advisor from Victoria who became involved in a multi-year romantic relationship with a wealthy older client is discussed. After the relationship ended the financial advisor sought the division of property from her former client and romantic partner on the basis that they had a “marriage-like relationship” of more than 2 years. Under the BC Family Law Act, if someone is in a marriage-like relationship for at least two years they can be entitled to a share of the couple's property. A second issue in the case is that the former client asked for repayment of $100,000 he provided to the financial advisor that she used as a down payment on a home. After considering a range of factors about the relationship, including intimate details of the couple's sexual practices, living arrangements, and activities, the judge concluded that they were not in a marriage-like relationship. With respect to the $100,000, when someone claims they received money as a gift they have the burden of proving this. The judge concluded that the financial advisor had not done this and she was ordered to repay the money.The case also raises important questions about the propriety of a financial advisor engaging in a romantic relationship with a paying client, to whom she owed a fiduciary duty. Follow this link for the c

This week on Legally Speaking with Michael Mulligan:Section 530 of the Criminal Code provides a right to a trial in either English or French. It also requires a judge or justice “before whom an accused first appears” to inform accused people of this right. If someone requests a trial in French or English no later than the time set for their trial, it is mandatory that this be provided. If a request is made later, a judge has discretion, but this is required to be exercised in a permissive way. If two or more people are being tried together, they might make elections concerning the official language that they wished to use. In such a case, a bilingual judge or jury would requried.   In a BC Court of Appeal case discussed on the show, a bilingual man, whose first language was French, sought a new trial, after being convicted, because he wasn't informed of his right to have a trial in French. In dismissing his appeal, the Court of Appeal pointed to several factors. The man was bilingual and had no apparent difficulty communicating in English that could have resulted in a need for a judge to make further inquiries concerning the language of the trial. The man had a lawyer assisting him and no issue concerning the language of the trial was raised prior to the appeal. The paperwork to attend court the man had been given following his arrest included notice of the right to have a trial in French or English, printed in French and English. At the first court appearance, where someone should be informed of their right to trial in English or French, the accused man was not present as he had retained a lawyer to appear for him. The Court of Appeal decision does suggest that, if the preference for a trial in French had been raised prior to the conviction and appeal, there may well have been a different outcome. Also, on the show, the reasons for judgment in the case of Craig James, the former Clerk of the Legislative Assembly of British Columbia are discussed. Mr. James was charged with several counts of fraud and breach of trust relating to matters including the payment of a “long service” or “retirement allowance” of $257,988, the purchase and use of a log splitter and trailer, as well as numerous other purchases including clothing.Mr. James was found not guilty of all the charges he was facing, with the exception of fraud under $5,000 relating to the purchase of two suits, a tie, and a dress shirt. While the judge found that Mr. James was likely not entitled to the $257,988 he had paid to himself, he had recieved an opinion from a senior lawyer that suggested he might have been entitled to the money. As a result it wasn't possible to conclude beyond a reasonable doubt that there had been fraud or breach of trust. The history of the “long service” or “retirement allowance” was that prior to Mr. James taking over as Clerk, the people who served as “table officers” in the legislature had been lawyers in private practice who did this work but did not receive pension, vacation, or other benefits paid to regular government employees. The allowance was intended to make up for this when they retired. Mr. James did receive the pension, vacation, and other benefits for the entire period of his employment, however, the policy with respect to the allowance was still in place. The conviction relating to the suits, tie and dress shirt was because Mr. James mischaracterized these expenses to make them look like they related to the uniform he would wear in the legislature. For example, he wrote “tabs” on the receipt for the tie. Follow this link for the cases discussed and a transcript of the show. 

This week on Legally Speaking with Michael Mulligan:Criminal offences require two things, often described with Latin names: actus reus and mens rea. Actus reus is an intentional physical act. Mens rea is a guilty mind. We don't wish to convict people for physical acts that were not intentional: crashing your car when you have a heart attack or tripping and falling into someone else would not be criminal offences, even if someone else was injured. We also don't want to convict people who don't intend to do something wrong. If, for example,  a checkout clerk at a store fails to scan something in your grocery cart properly and you walk out of the store without having paid for the item, it would not constitute theft. Being drunk will not ordinarily provide a defence to a criminal offence. When, however, someone is so impaired by alcohol or drugs that they are no longer capable of voluntary actions, it can amount to automatism. Such a state could result in involuntary movements like those that might result from sleepwalking or someone having a seizure. The Supreme Court of Canada recently considered a case in which a young man consumed alcohol and psilocybin mushrooms which, according to expert evidence that a trial judge accepted, caused hallucinations and ultimately for him to lose voluntary control over his actions. In this state, the man broke into a house and hit a random woman with a broom, injuring her.The Supreme Court of Canada found section 33.1 of the Criminal Code, which permitted convictions even where there was no actus reus, or mens rea, because of voluntary intoxication, to be unconstitutional. The Supreme Court of Canada pointed out that section 33.1 made no distinction between legal and illegal drugs. Someone who had an adverse reaction to an anesthetic and, while incapacitated, involuntarily hit someone could have been convicted of assault because of section 33.1. The court pointed out that it would be constitutionally permissible to create an offence of criminal intoxication, which would be focused on intentionally getting into a state of extreme impairment and then causing harm, rather than attempting to convict people for physical acts they had no control over. Also, on the show, in a companion decision to the one referred to above, the SCC clarified the concept of Horizontal stare decisis. The court system is organized as a hierarchy. There is a Provincial Court, a Superior Court, and a Court of Appeal in each province. The Supreme Court of Canada then hears appeals from all the Courts of Appeal. Lower courts are required to follow the decisions of higher courts in the same province. The Supreme Court of Canada pointed out that judges are also required to follow the decisions of other judges from the same level of court in their province: Horizontal stare decisis.This requirement promotes consistent, predictable decision-making. A judge is only permitted to depart from a legal finding of a previous judge of the same court in the circumstances set out in a BC case dating from 1954: Re Hansard Spruce Mills. Finally, on the show, the BC Court of Appeal, in a 2 – 1 split decision, has found some impugned provisions of the ICBC no-fault scheme to be constitutionally permissible. The provisions prevent injured people from suing in Supreme Court.The issues in the case involved the jurisdiction of the BC Supreme Court judges and the lack of independence of the Civil Resolution Tribunal, which has been permitted to make decisions concerning disputes with ICBC, even though it's not independent of government. Follow this link for a transcript of the show and links to the cases discussed. 

This week on Legally Speaking with Michael Mulligan:The 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: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. 

I was loath to edit this one. The audio on my side took a lot of work to correct because of some glitch in the audio chain, but I think it came out well in the end. The volume was all over the place and I had to take the time to go through it and alter the volume envelope. Better late than never! For Feb 6, 2020... Assisted dying news - Justice Minister David Lametti to table new legislation expanding access to medical assistance in dying; Catholic authority predictably plays the fear card; a British Columbia hospice refuses to comply with MAID poloicy; BC court sides with father and orders children to be vaccinated over mother's objections.