Legally Speaking with Michael Mulligan

This week on Legally Speaking with Michael Mulligan: Section 8 of the Charter provides that everyone has the right to be free from unreasonable search or seizure. A search conducted by the police, without prior judicial authorization, is presumptively unreasonable. One of the exceptions to this principle is that police are permitted to conduct searches incidental to a lawful arrest. If a police of...

This week on Legally Speaking with Michael Mulligan: Unlike criminal cases, where there is always a next appearance date scheduled in court until a case is completed, civil cases are generally moved along by the plaintiff. The case discussed on the show involved a civil claim resulting from an apparently defective drop-side crib. The issue was identified in 2009 and resulted in the crib manufactur...

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”....

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

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 la...

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,...

This week on Legally Speaking with Michael Mulligan: As a matter of public policy, courts will not recognize a benefit accruing to a criminal for his crime. As a result, a murderer cannot collect life insurance or a gift in a will from the person they murdered. A recent BC Supreme Court case considered how the estate of a mother, who was murdered by one of her two adult sons, should be divided. Th...

This week on Legally Speaking with Michael Mulligan: More than 400 people are being prosecuted for criminal contempt arising from alleged breaches of an order from the BC Supreme Court that prohibits people from obstructing logging at Fair Creek.  This has resulted in some logistical issues with large numbers of accused people requiring legal advice prior to entering pleas and fixing dates for tri...

This week on Legally Speaking with Michael Mulligan: The first case discussed on the show involved three First Nations Children who were brought to BC from Saskatchewan to live with their grandmother. The parents of the children were unable to care for them because of ongoing alcohol and substance abuse. Shortly after they arrived the grandmother found marijuana in the effects of one of the childr...

This week on Legally Speaking with Michael Mulligan: The Provincial Court in British Columbia handles 95% of criminal cases, as well as many family law cases, youth, small claims, and ticket disputes. The 2020 / 2021 annual report from the court is discussed on the show. Significant changes during this time include that 77% of all appearances in Provincial Court were technology-enabled: at least o...

This week on Legally Speaking with Michael Mulligan:  The BC Court of Appeal allowed an appeal by Teal Cedar extending an injection against people attempting to physically prevent the company from logging. The original interim injunction was not renewed by a judge because of concerns with respect to how the RCMP was enforcing the injunction and the fact that the conduct of the people attempting to...

This week on Legally Speaking with Michael Mulligan: An appeal by a 13-year-old girl who was found to be not criminally responsible as a result of a mental disorder (NCRMD) provides insight into how criminal law deals with mental illness. The girl in question was described as having a childhood that was troubled: a history of neglect, a family history of substance use, mental health issues and sui...

This week on Legally Speaking with Michael Mulligan: Recently, small groups of protesters have been intentionally blocking  highways to get attention for their cause and to compel the government to meet various demands. So far, police have exercised restraint and have attempted to  persuade the protesters to move before arresting them. The police are not, however, required to wait any period of ti...

This week on Legally Speaking with Michael Mulligan: Mediation efforts to resolve civil or family disputes are typically treated as being confidential and can’t be referred to if the case winds up in court. The reason for this is to permit candid discussions and compromise that result in disputes settling before going to trial. A recent Supreme Court of Canada case considered the admissibility of...

This week on Legally Speaking with Michael Mulligan: The approval of COVID-19 vaccines for children ages 5 – 11 has resulted in family law disputes between separated parents who disagree about getting their children vaccinated. A number of these cases have now been litigated, across Canada, and the consistent outcome has been for court orders permitting the children to be vaccinated, despite the o...

This week on Legally Speaking with Michael Mulligan: There are two kinds of Mischief offences in the Criminal Code:  Mischief, and Public Mischief. Mischief is defined and prohibited by section 430 of the Criminal Code. This section makes it an offence to, amongst other things, damage or destroy property or to interfere with the lawful use, operation or enjoyment of property. This section applies...

This week on Legally Speaking with Michael Mulligan: The previous Conservative federal government added numerous mandatory minimum jail sentences to the Criminal Code and Controlled Drugs and Substances Act. While they have failed to deter crime, they have contributed to the disproportionate number of indigenous and Black Canadians in jail. Indigenous Canadians represent approximately 5 percent of...

This week on Legally Speaking with Michael Mulligan: The BC Court of Appeal recently allowed a sentence appeal by the Crown and converted a two-year conditional sentence, sometimes called house arrest, into a regular jail sentence for a bookkeeper convicted of defrauding her employer. Because the bookkeeper had a previous conviction for similar behaviour and was acting in a position of trust, the...

This week on Legally Speaking with Michael Mulligan: The obstruction of roads and highways has become an increasingly common method of protesting various things. As discussed on the show, blocking or obstructing a highway, and in so doing, preventing anyone from doing anything they have a right to do, is a criminal offence pursuant to section 423 (1) (g) of the Criminal Code. The office is punisha...

This week on Legally Speaking with Michael Mulligan: More than three days after flooding caused massive damage in BC, the provincial government declared an emergency pursuant to the Emergency Program Act. The emergency declaration lasts for up to 14 days and can be renewed. Pursuant to the authority this affords, the provincial government has restricted travel on damaged highways and has limited c...

This week on Legally Speaking with Michael Mulligan: A senior Saanich Police Officer was fired after the Police Complaints Commissioner confirmed a finding that he had committed 14 counts of Deceit as well as Discerptible Conduct and Neglect of Duty for falsifying the recertifications of other officers as Drug Recognition Experts. The fake recertification of other officers as Drug Recognition Expe...

This week on Legally Speaking with Michael Mulligan: Who is in jail and why? In Canada, the responsibility for jailing adults is divided between the federal and provincial governments. The federal government is responsible for penitentiaries, where people serve sentences longer than two years. The provinces are responsible for jails for people serving shorter sentences and for people who are in ja...

This week on Legally Speaking with Michael Mulligan: The MV Zim Kingston lost 109 containers, near Vancouver Island, containing everything from yoga mats to car parts and chemicals. Some of the containers, and their contents, have been washing up on Vancouver Island beaches.  One of the legal issues raised by this is the legal right to salvage material. With thanks to Darren Williams , an expert i...

This week on Legally Speaking with Michael Mulligan: In 2012 the self-defence provisions of the Criminal Code were rewritten.  The new provisions only permit self-defence to apply if the act in question was “reasonable in the circumstances”. When deciding if an act is reasonable in the circumstances, the new section provides a non-exhaustive list of things to be considered by a judge or jury: (a)...

This week on Legally Speaking with Michael Mulligan: The BC Court of Appeal, BC Supreme Court, and BC Provincial Court issued a joint release advising that all judges and judicial officers, in all the courts in BC, have received two doses of vaccine for COVID-19.  The courts further advised that, as of November 22, all court staff and all contractors accessing the secure (non-public) areas of cour...