April 11, 2025 • 22 mins
What happens when someone experiencing a psychotic episode intentionally crashes into a motorcyclist they believe is a "demon"? This fascinating exploration of mental illness and legal liability takes us through a landmark BC case that transforms how we understand responsibility when reality breaks down.
The distinction between criminal and civil liability becomes crucial as we follow the story of a man with no prior psychiatric history who suffered a complete psychotic break in 2018. While criminal law might find him not responsible due to mental disorder, civil law focuses on compensation rather than punishment. The judge's nuanced approach reveals how liability extends beyond just the final moment of incapacity—examining the gradual deterioration that preceded the collision provides vital context for understanding accountability.
This case carries profound implications for anyone interested in mental health advocacy, legal rights, and public safety. The court's finding of both negligence and battery resulted in a substantial award to the injured voice actor while also creating complex insurance issues since intentional acts typically aren't covered by policies. Perhaps most strikingly, the vehicle owner—the driver's then-girlfriend—was also held liable despite her desperate attempts to prevent him from driving once she realized his condition.
We also delve into a separate but equally compelling case involving a Green Party deputy leader whose sentence for criminal contempt was reduced on appeal due to a misapplication of the "step-up principle." This illuminating example shows how judicial sentencing is constrained by legal principles that ensure proportionality and fairness rather than simply escalating punishments for repeated offences.
Whether you're a legal professional, mental health advocate, or simply curious about how our justice system navigates these complex intersections, this episode offers valuable insights into how responsibility, compensation, and accountability function when mental capacity is compromised. Share your thoughts on these rulings and join the conversation about where personal responsibility begins and ends.
Follow this link for a transcript of the show and links to the cases discussed.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for our regular segment Legally
Speaking, joined as always bybarrister and solicitor with
Mulligan Defence Lawyers.
Morning, Michael Mulligan, orafternoon I should say Michael
Mulligan, force of habit.
How are you doing this week?
Michael Mulligan (00:11):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:14):
A really interesting story off the top
today because it deals with aphenomenon that you and I have
discussed any number of timesduring recent segments, and that
is the intersection that canhappen with unlawful behavior
that is motivated by a personwho may be suffering from some
sort of psychiatric disorder,and how the legal system deals
with that in differentsituations.
I'm reading here it says driverwho believed a motorcyclist was
(00:37):
a demon liable for accident.
What happened?
Michael Mulligan (00:41):
Well, it's a tragic case from 2018 in
Vancouver and it's particularlyinteresting because it deals
with the issue of how severemental illness or episode
interfaces with civil liabilityrather than criminal liability.
Context right, we don't punishpeople if they're not criminally
(01:03):
responsible as a result of amental disorder, which involves
an assessment of things,including whether they're able
to, you know, understand thenature and quality of what
they're doing or what they'redoing was wrong.
Right, because a criminal lawis interested in punishing, you
know, intentional wrongdoing,not, you know, accidents or
people that think they'refighting off demons right Now,
(01:24):
as we've talked about, beingfound not criminally responsible
does not mean you go free.
It usually means you're in amental hospital, in a secure
facility, until there's adetermination made that you're
not a danger to the public,which could be for the rest of
your life, but that's criminal,and what we're dealing with here
is civil.
Back in the days before, we hadno fault and no one's
responsible for anything.
Back in the days before we hadno fault and no one's
(01:47):
responsible for anything.
The case involved a civil claimbrought by a motorcycle rider
who was intentionally run intoon the Lions Gate Bridge, and it
happened, as I said, in 2018,september.
The motorcycle rider and afriend were out for a pleasant
motorcycle ride in NorthVancouver.
They're coming across a bridgeand, very unfortunately for them
(02:09):
, behind them was this fellowwho had no previous history of
any psychiatric issues at all,which was important to the case
fellow over a period of threedays.
As a result, it sounds like ofsort of a combination of various
stressors and a dangerous joband finding out about the death
of a neighbor and a workplaceinjury and lack of sleep,
(02:32):
various things.
He had this complete break withreality where he had these
paranoid delusions eventually,where he thought that there were
demons that he needed toprotect people from and he
thought these two people on twomotorcycles were demons that he
needed to protect people from.
And he thought these two peopleon two motorcycles were demons.
And so he decided to ram hisAudi not his Audi, actually,
(02:53):
that's interesting too.
It was his ex-girlfriend's Audi, now ex-girlfriend's Audi into
the back of one of them,throwing one of the men off his
motorcycle who went skiddingalong the road.
It caused all kinds of itcaused various things torn
rotator cuff and sprained,wrinkle, wrist and ankle
Described.
You know, going along thesidewalk with belts flying off
(03:15):
or sparks, flying off of a metalthing on his belt Awful, I must
say.
Very fortunate it wasn't worse,yeah, but that fellow wound up
making a civil claim suing boththis man, the driver of the Audi
and the owner of the Audi theman's then-girlfriend.
And there's provisions in theInsurance Motor Vehicle Act that
(03:36):
make the owner of a vehicleliable when they allow other
people to use it, which is alsoimportant to know.
Yeah, now the claim involvedclaims for, you know,
non-pecuniary, like pain andsuffering, but also for lost
future earnings, which is oftena big thing.
The man was described as avoice actor who does animated
productions, commercials andvideo games.
(03:58):
So you know, maybe he's thevoice of Super Mario Brothers,
who knows.
But he alleged that his incomewent down as a result of the
injuries that he suffered thatnight.
Now here's why it's a reallychallenging problem to get your
head around in terms of how doesmental illness and this kind of
a clear?
Everyone agreed this man hadthis breakdown.
(04:19):
He genuinely thought there weredemons and flames coming out
from under the bridge and hethought he was saving people.
You know, earlier that day hefound himself in an Ikea parking
lot with an impulse to go upand try to help people he
thought were in danger.
So clearly the man had thiscomplete breakdown.
But the reason it's challengingfrom a civil liability
(04:41):
perspective is well, civilliability is not concerned with
punishing people and wrongdoing.
It's concerned withcompensation for loss.
But the basis of the civilclaim, really there are two
elements to it.
One was a claim in what'scalled negligence, and
negligence involves there beinga person who has a duty of care
to somebody else.
Like when you're driving yourcar, you've got a duty of care
(05:02):
to be careful, so you don't liketo somebody else.
Like when you're driving yourcar, you've got a duty of care
to be careful, so you don't likerun into people.
Well, at least you did, and sothere's that.
And then, if you establish thatyou have a duty of care, you
have to show that the person wasnegligent or careless, right.
And the reason that ischallenging in this context is
there are some circumstances inwhich, let's say, a person with
no prior history is drivingalong and they suffer an
(05:25):
aneurysm brain, aneurysm rightand they lose control and they
crash into somebody, injuringthem.
Well, there may be nonegligence there, right, if the
person had no reason to thinkthey were going to have a brain
aneurysm, just suddenly just hitthem right and they lost
control.
Well, they didn't have anycontrol over their actions, they
weren't like sort of carelessleading up to it, nothing, it
(05:46):
just happened, right.
And similarly the action wasalso framed in what's called
battery, and battery is kind ofthe civil cousin of the criminal
idea of assaulting somebody.
Right, and here that was framedthat way as well, because the
man like it wasn't an accident,he like intentionally drove his
car into the motorcycle thinkinghe was being driven by a demon.
(06:08):
And so then the issue there iswell, is that captured right,
you know?
What degree of you know mentalcapacity do you have to have at
the time for that as well?
So that's what the judge wasstruggling with in this just
fascinating case.
And, as the judge points out,the law about this is all over
the map.
(06:28):
The judge actually had toattach this is interesting, they
had to attach an appendixoutlining all the different ways
this has been dealt with indifferent common law
jurisdictions, differentprovinces in Canada, and some of
the law is now quite old, andso the judge had to struggle
with all of those concepts.
(06:48):
Well, what do you do with this?
Right?
And ultimately, the approach thejudge took to it is similar to
an approach that can be taken insome cases involving things
like heart attacks, where theheart attack causes the car
accident.
Right, because here's theargument.
The argument made was look, youknow, clearly at the time the
(07:09):
man had no capacity to know thathe had a duty of care to anyone
.
He was just kind of right in acompletely different world.
But the argument by theplaintiff was well, you
shouldn't look at just like whathappened in the hour or two
before or the few minutes before, and the analogy there would be
like, for example, with a heartattack that causes a car
accident.
You know, if somebody's drivingalong, no problem at all, and
(07:32):
they just have a sudden massiveheart attack, they lose control,
they're probably not negligent.
But let's say, on the otherhand, you say to yourself, boy,
you know, my chest really hurts,I've got a real pain there, boy
, I think I'm in trouble.
And you just say, well, I don'treally want to get an ambulance
, I'll just drive myself to thehospital.
And then you in fact losecontrol driving there.
(07:52):
Well, at that very last moment.
Yeah, that might be out of yourcontrol or capacity right to do
anything about.
But the judge looked at here thefact that this man had some
idea that things were goingwrong over the past couple of
days, like the previous coupleof days, like he left work
thinking he couldn't safelyoperate equipment and he seemed
to kind of degrade over a coupleof days, eventually getting
(08:14):
into this completely psychoticstate.
A pretty good balancing is, thejudge concluded.
Look, even though he may havenot had any capacity to do
anything or recognize thestandard of care at the time
when he was so deep into thispsychosis that he thought there
were demons on motorcycles, hewasn't in that state for the
(08:35):
whole period of time.
He seemed to recognize that hehad periods, while his memory as
to what was going on over thepreceding two or three days was
spotty.
There was like evidence fromhis girlfriend at the time that
he seemed lucid and fine on thephone.
Uh, you know that morning.
But then, like shortly beforehe did this, he had stopped his
car and phoned her and she wasclearly very concerned that he
(08:56):
had, you know, had lost touchwith reality to the point where
she phoned like nine one onething, oh my God, and told him
don't drive, pulled out and wentand did this right.
But the idea of the liabilityhere and a similar approach
might be taken to somebody whodrinks a whole lot of alcohol,
(09:17):
right, the idea that, hey,you're drinking, you're drinking
, you're getting really drunk,you're getting really drunk and
then you're blackout drunk whenyou hop in your car and go and
hit somebody, right, you canalso make.
Well, I can appreciate at thetime you just passed out in your
car, but the analysis isn'tyour obligation or your duty of
care extends beyond that lastmoment when you passed out.
(09:37):
From all the alcohol you drank,right.
And so that was the approachthe judge applied here and found
that, even though at that lastminute, in the last few minutes,
he didn't have that kind ofcapacity, there was still
negligence which is much lower.
Punishing him, we're justsorting out liability money
really, and so that wassufficient.
Also, interestingly, the judgefound that the ex-girlfriend is
(09:59):
also liable because it's hervehicle and she had allowed him
to use the vehicle and, eventhough she got this final phone
call from him, told him you know, my God, don't drive, don't go
anywhere, and phoned 911 andcalled his brother and tried to
stop him from driving beforethis happened.
There's a section of theinsurance motor vehicle or a
(10:19):
motor vehicle like Section 86,that when a person acquires a
motor vehicle with consent ofthe owner and he had, she'd let
him use her Audi you becomeliable for accidents that happen
with it and so, even though shetried to do things to intervene
, she's also on the hook for it.
And so at the end of the dayit's a substantial judgment.
(10:41):
The voice actor who wasseriously hurt.
He'd asked for $1.4 million.
He didn't get that but theaward was for $429,000.
And there are going to be someinteresting insurance issue
coverage issues here, because,for example, your ICBC coverage
again back at the time when wewere responsible for our actions
doesn't cover somebody whoengages in battery, like you're
(11:03):
not insured for intentionallyramming somebody with your car,
not surprisingly, how do youinsure that right?
So there's going to be a reallyinteresting issue here.
The claim was allowed on boththat battery and negligence.
No doubt negligence would becovered by the insurance, but it
may be, at the end of the day,this man who had the psychotic
break and, interestingly, noissue since he went to treatment
(11:25):
.
He took medication no problemfor the past six years.
This was a one-time thing.
By all accounts, he and hisex-girlfriend may wind up
personally on the hook on thebasis that the judge found
there's also liability inbattery, which isn't something
covered by your insurance.
So it's a fascinating case andthat's how sort of mental health
and so on can interface withnot only criminal liability but
(11:49):
civil liability.
And that was the latest fromthe BC Supreme supreme court
trying to sort out differentlaws all across the country and
all around the world michaelmulligan with mulligan defense
lawyers.
Adam Stirling (11:58):
Legally speaking will continue right after this
legally speaking continues oncfax 1070 with michael mulligan,
barrister solicitor, withmulligan defense lawyers.
Michael up next it says themisapplication of the step-up
principle results in a reducedjail sentence for contempt of
court multiple times, and it's amatter that we've been
following for years now.
Michael Mulligan (12:18):
It feels like that's true, and so it's one of
the cases that comes out ofthose flying squirrel protests
where there were a whole bunchof people convicted of criminal
contempt.
Ultimately and the case isnotable for several reasons it's
a court of appeal decisiondealing with a sentence imposed
on a woman, ms Davidson, who isa public figure in the sense
(12:39):
that she's a deputy leader ofthe Green Party and a candidate
in the upcoming federal electionin the Northwest Territories.
And Ms Davidson, in this case,had a trial and was ultimately
convicted of seven counts ofcriminal contempt for breaching
court orders restricting the wayin which people could protest
(13:01):
to try to stop logging.
And, as the trial judge and theCourt of Appeal point out here,
criminal contempt is an offensethat they quote strikes at the
heart of the rule of law, right.
Offense that they quote strikesat the heart of the rule of law
right.
You don't have the rule of law.
People just ignore laws thatthey don't like, even if they
feel strongly about it, which, Imust say, is it's rather ironic
that somebody convicted ofseven counts of criminal
(13:23):
contempt is running for election.
You wonder why bother if you'reinterested in participating in
making laws, if your positionappears to be just ignore them
if you don't like them.
That's a rather incongruentproposition, and so it's
interesting, of course, that sofar they're still having her
continue in that role, althoughI suppose influenced by the fact
(13:45):
that one of the co-leaders ofthe Green Party local candidate
here, ms May, was also convictedof criminal contempt on other
occasions, so maybe that temperstheir view of it.
But in any case, this woman isconvicted of these seven counts
of criminal contempt following atrial, and the Crown and
Defence have different positionson sentencing at the time.
(14:07):
The Crown's asking for, I think,51 days plus a period of
community work service andprobation, and Defence counsel
is asking for time served.
The woman had spent 12 days incustody, I guess, waiting during
her various arrests, I guess,and the judge in the case
interestingly imposes more thanwhat the Crown was asking for.
The Crown wanted 51 days, thejudge gives 60 days and the
(14:32):
arguments on the appeal theywere several, and the appeal was
conducted on behalf of thewoman by Mr Isset, former city
councillor here, who's obviouslydoing a good job for his client
.
Lots of interesting legalarguments here, but it flows
from a case NAHANE.
(14:53):
It's a case that went to theSupreme Court of Canada, which
stands for the proposition thatwhere a judge is going to impose
more like a longer sentence onwhat the Crown is asking for, a
judge is required to givecounsel an opportunity to make
further submissions about that,right, okay, well, the Crown is
(15:13):
asking for 51, I'm going to give60,.
What do you say about thatAnything more?
I should take into account,right, so he made that argument.
The Court of Appeal found thatdidn't have merit here because
the judge made clear in hisinteraction with Crown including
about that other concept, thatstep-up principle that made
clear that the judge had aconcern that the sentence the
Crown was asking for is notsufficient.
(15:34):
So it wasn't a circumstancewhere Defence Council didn't
have an opportunity to providemore information that might
explain why the sentence wouldbe appropriate, or the Crown to
provide more information aboutwhy they're taking the position.
They did.
That happened and the problemthat was identified was an issue
with how the judge applied thatthing.
You mentioned the step-upprinciple.
(15:56):
Now, the step-up principle isthe way it's sometimes expressed
is sort of the idea that youknow if you keep getting
convicted of the same thing,your sentence is going to go up,
which probably doesn't need aprinciple to establish it.
I'm sure anyone listening wouldthink, yeah, that kind of how
it's how it works, right?
You don't usually get lesserand lesser sentences if you just
(16:16):
keep doing the same thing,indeed.
But.
But the reason it was an issuehere the Court of Appeal
identified is how the judgeexpressed that in that
discussion with the Crown.
Remember, the Crown says we say51 days, crown's like well, hold
on a minute.
Is that really, taking intoaccount the repeated activity
here and the way the judgeexpressed it is a way that
(16:40):
sometimes you do hear itexpressed in court but it's not
quite right.
It is a way that sometimes youdo hear it expressed in court
but it's not quite right.
And what the judge expressed toCrown was the idea that he
expressed it this way.
The judge said surely she keepsgoing back, she keeps flaunting
the orders of the court, shekeeps disobeying them Each time,
successively, she does that.
Doesn't the step up principleoblige me?
(17:01):
Doesn't it oblige me?
Doesn't it suggest that foreach successive breach I found
there has to be an increase inthe sanction?
That's how the judge asked thequestion to Crown and this is
also an example of why it'simportant that judges, you know
everything in court is recorded.
It's public right and judgeshave to give reasons for what
they're doing.
So you can, like this, look atit afterwards.
(17:23):
Did they do it right?
And that concept, the Court ofAppeal pointed out, is the way
the judge expressed it.
The former now retired formerchief judge or the chief justice
of the province was wrong andthe Court of Appeal pointed out,
and there's previous authorityfor this.
And the Court of Appeal pointedout, and there's previous
(17:45):
authority for this, is that theconcept, the step-up principle,
does not require a judge toimpose greater and greater
sentences every time.
They might do that, right,they're not obliged to.
It's not a requirement, step-upprinciple.
Not only does it not require ajudge to increase sentences for
each count, like each timesomebody does something.
(18:06):
It in fact is a way to expressthe idea that there has to be a
measured increase, right, likeyou know, each time it shouldn't
be.
Well, you know, last time aperson got, you know, two weeks
for shoplifting, they shopliftedagain and the judge shouldn't
just say, okay, this time it'sgoing to be three years in
prison.
They shoplift it again and thejudge shouldn't just say, okay,
this time it's going to be threeyears in prison, right, the
idea properly expressed would be.
(18:27):
A judge can, of course, takethat into account.
It might impose a greatersentence, but there should be
consideration given to thesentence that occurred on the
last occasion and there shouldbe some sort of moderation or
measure in terms of how muchyou're increasing it.
And so the Court of Appealsexpressed it's not an obligation
to make it more, it is asuggestion or a requirement that
(18:50):
judges moderate how muchthey're jumping up each time,
which is a very different thing.
And so the Court of Appealsfound the judge was mistaken
when he expressed that idea thathe was obliged to impose more
than the Crown was asking for onthe basis of that principle.
The judge just didn't properlyunderstand that principle which,
in fairness to the judge,that's a subtle difference,
(19:11):
right, but it is a meaningfuldifference.
And it's another example of howthere are all kinds of
restraints on what a judge isallowed to do.
Right, judges aren't justunfettered kind of going off
imposing whatever sentence theykind of feel like that day.
This is an example of one ofthe kind of legal constraints,
because it's not an emotionalprocess, it's supposed to be a
(19:33):
process of reason and logic andconsistency and so on.
The other thing that's worthpointing out and some people may
not be aware of this is that wementioned that, that idea about
giving the lawyers a chance torespond or give additional
information if the judge isgoing to do more than what one
of them is asking for.
Right, that seems fair.
But the other thing peopleshould know about is there's
(19:54):
another Supreme Court-accountedcase, anthony Cook, that
actually restricts a judge'sability to depart when there's
an agreement between the twolawyers, like if the defense and
Crown make an agreement and saylook, okay, my client will
plead guilty to criminalcontempt if you, crown, would
agree to ask for, let's say, 45days and I'll agree to ask for
the same thing.
Right, you have a deal.
(20:15):
When that happens and it's madeclear to the judge that this is
a joint submission, bothlawyers have agreed and that's
the basis upon which the personpled guilty, in that case, a
judge has very little discretionto depart from it.
They can only be departing fromwhat both lawyers are asking
them to do.
If imposing what's being askedfor there would bring the
administration of justice intodisrepute, it's completely
(20:37):
inappropriate.
If people look at that and bewell, that's just outrageous.
I'm not doing that, right, thenthey can depart from it.
But short of that very high bar, a judge must do what they're
being told to do.
They can't monkey with it right, and the reason for the law
being that way is that otherwiseno case would resolve, like
everything would just go totrial.
If it was just a topsy-turvyworld where judges could do
(20:59):
whatever they felt like,regardless of whether there was
an agreement or not, you wouldnot have cases resolving, and
most criminal cases result by aguilty plea, and that's one of
the reasons why.
So that's another example ofhow judges can't just do
whatever they want.
In some cases, the lawyers havemuch more control over the
sentence than the judge would.
Now, this was a case wherethere wasn't a joint submission,
(21:21):
so the judge did have authorityto depart from it, didn't
breach that obligation to giveeach side a chance to say more,
because it made clear there wasa problem, but made a mistake in
terms of how he did it.
The net result the sentenceoriginally imposed was 60 days,
reduced by 12 for the timealready spent in jail, and the
Court of Appeal reduced that to51 days, what the Crown had
(21:41):
originally asked for.
Adam Stirling (21:42):
All right.
Michael Mulligan (21:43):
And so found that she'll need to serve 39
more days.
Also, interestingly said,she'll have to start serving
that on April the 24th, whichwill be just before the upcoming
federal election.
So I guess if she wants to votefor herself she'll need to do
that in an advanced poll.
Also interestingly, she wasgiven some time to start serving
it.
Often with these appeals aperson has to turn themselves in
(22:04):
before the appeal is heard andthen would continue serving it
if the jail sentence continues.
So that's the latest from MsDavison the sentence appeal and
the step-up principle.
Adam Stirling (22:11):
All right.
I believe her counsel issued apress release either yesterday
or the day before saying thatthey intend to appeal the matter
to the Supreme Court of Canadaand were hopeful to get bail as
early as today.
Michael Mulligan (22:20):
Well, you can always ask, but you don't get to
go to the Supreme Court ofCanada.
Because you're keen, you haveto ask permission no-transcript.
Adam Stirling (22:34):
Cfax 1070.
It's time for our regular segment Legally
Speaking, joined as always bybarrister and solicitor with
Mulligan Defence Lawyers.
Morning, Michael Mulligan, orafternoon I should say Michael
Mulligan, force of habit.
How are you doing this week?
Michael Mulligan (00:11):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:14):
A really interesting story off the top
today because it deals with aphenomenon that you and I have
discussed any number of timesduring recent segments, and that
is the intersection that canhappen with unlawful behavior
that is motivated by a personwho may be suffering from some
sort of psychiatric disorder,and how the legal system deals
with that in differentsituations.
I'm reading here it says driverwho believed a motorcyclist was
(00:37):
a demon liable for accident.
What happened?
Michael Mulligan (00:41):
Well, it's a tragic case from 2018 in
Vancouver and it's particularlyinteresting because it deals
with the issue of how severemental illness or episode
interfaces with civil liabilityrather than criminal liability.
Context right, we don't punishpeople if they're not criminally
(01:03):
responsible as a result of amental disorder, which involves
an assessment of things,including whether they're able
to, you know, understand thenature and quality of what
they're doing or what they'redoing was wrong.
Right, because a criminal lawis interested in punishing, you
know, intentional wrongdoing,not, you know, accidents or
people that think they'refighting off demons right Now,
(01:24):
as we've talked about, beingfound not criminally responsible
does not mean you go free.
It usually means you're in amental hospital, in a secure
facility, until there's adetermination made that you're
not a danger to the public,which could be for the rest of
your life, but that's criminal,and what we're dealing with here
is civil.
Back in the days before, we hadno fault and no one's
responsible for anything.
Back in the days before we hadno fault and no one's
(01:47):
responsible for anything.
The case involved a civil claimbrought by a motorcycle rider
who was intentionally run intoon the Lions Gate Bridge, and it
happened, as I said, in 2018,september.
The motorcycle rider and afriend were out for a pleasant
motorcycle ride in NorthVancouver.
They're coming across a bridgeand, very unfortunately for them
(02:09):
, behind them was this fellowwho had no previous history of
any psychiatric issues at all,which was important to the case
fellow over a period of threedays.
As a result, it sounds like ofsort of a combination of various
stressors and a dangerous joband finding out about the death
of a neighbor and a workplaceinjury and lack of sleep,
(02:32):
various things.
He had this complete break withreality where he had these
paranoid delusions eventually,where he thought that there were
demons that he needed toprotect people from and he
thought these two people on twomotorcycles were demons that he
needed to protect people from.
And he thought these two peopleon two motorcycles were demons.
And so he decided to ram hisAudi not his Audi, actually,
(02:53):
that's interesting too.
It was his ex-girlfriend's Audi, now ex-girlfriend's Audi into
the back of one of them,throwing one of the men off his
motorcycle who went skiddingalong the road.
It caused all kinds of itcaused various things torn
rotator cuff and sprained,wrinkle, wrist and ankle
Described.
You know, going along thesidewalk with belts flying off
(03:15):
or sparks, flying off of a metalthing on his belt Awful, I must
say.
Very fortunate it wasn't worse,yeah, but that fellow wound up
making a civil claim suing boththis man, the driver of the Audi
and the owner of the Audi theman's then-girlfriend.
And there's provisions in theInsurance Motor Vehicle Act that
(03:36):
make the owner of a vehicleliable when they allow other
people to use it, which is alsoimportant to know.
Yeah, now the claim involvedclaims for, you know,
non-pecuniary, like pain andsuffering, but also for lost
future earnings, which is oftena big thing.
The man was described as avoice actor who does animated
productions, commercials andvideo games.
(03:58):
So you know, maybe he's thevoice of Super Mario Brothers,
who knows.
But he alleged that his incomewent down as a result of the
injuries that he suffered thatnight.
Now here's why it's a reallychallenging problem to get your
head around in terms of how doesmental illness and this kind of
a clear?
Everyone agreed this man hadthis breakdown.
(04:19):
He genuinely thought there weredemons and flames coming out
from under the bridge and hethought he was saving people.
You know, earlier that day hefound himself in an Ikea parking
lot with an impulse to go upand try to help people he
thought were in danger.
So clearly the man had thiscomplete breakdown.
But the reason it's challengingfrom a civil liability
(04:41):
perspective is well, civilliability is not concerned with
punishing people and wrongdoing.
It's concerned withcompensation for loss.
But the basis of the civilclaim, really there are two
elements to it.
One was a claim in what'scalled negligence, and
negligence involves there beinga person who has a duty of care
to somebody else.
Like when you're driving yourcar, you've got a duty of care
(05:02):
to be careful, so you don't liketo somebody else.
Like when you're driving yourcar, you've got a duty of care
to be careful, so you don't likerun into people.
Well, at least you did, and sothere's that.
And then, if you establish thatyou have a duty of care, you
have to show that the person wasnegligent or careless, right.
And the reason that ischallenging in this context is
there are some circumstances inwhich, let's say, a person with
no prior history is drivingalong and they suffer an
(05:25):
aneurysm brain, aneurysm rightand they lose control and they
crash into somebody, injuringthem.
Well, there may be nonegligence there, right, if the
person had no reason to thinkthey were going to have a brain
aneurysm, just suddenly just hitthem right and they lost
control.
Well, they didn't have anycontrol over their actions, they
weren't like sort of carelessleading up to it, nothing, it
(05:46):
just happened, right.
And similarly the action wasalso framed in what's called
battery, and battery is kind ofthe civil cousin of the criminal
idea of assaulting somebody.
Right, and here that was framedthat way as well, because the
man like it wasn't an accident,he like intentionally drove his
car into the motorcycle thinkinghe was being driven by a demon.
(06:08):
And so then the issue there iswell, is that captured right,
you know?
What degree of you know mentalcapacity do you have to have at
the time for that as well?
So that's what the judge wasstruggling with in this just
fascinating case.
And, as the judge points out,the law about this is all over
the map.
(06:28):
The judge actually had toattach this is interesting, they
had to attach an appendixoutlining all the different ways
this has been dealt with indifferent common law
jurisdictions, differentprovinces in Canada, and some of
the law is now quite old, andso the judge had to struggle
with all of those concepts.
(06:48):
Well, what do you do with this?
Right?
And ultimately, the approach thejudge took to it is similar to
an approach that can be taken insome cases involving things
like heart attacks, where theheart attack causes the car
accident.
Right, because here's theargument.
The argument made was look, youknow, clearly at the time the
(07:09):
man had no capacity to know thathe had a duty of care to anyone
.
He was just kind of right in acompletely different world.
But the argument by theplaintiff was well, you
shouldn't look at just like whathappened in the hour or two
before or the few minutes before, and the analogy there would be
like, for example, with a heartattack that causes a car
accident.
You know, if somebody's drivingalong, no problem at all, and
(07:32):
they just have a sudden massiveheart attack, they lose control,
they're probably not negligent.
But let's say, on the otherhand, you say to yourself, boy,
you know, my chest really hurts,I've got a real pain there, boy
, I think I'm in trouble.
And you just say, well, I don'treally want to get an ambulance
, I'll just drive myself to thehospital.
And then you in fact losecontrol driving there.
(07:52):
Well, at that very last moment.
Yeah, that might be out of yourcontrol or capacity right to do
anything about.
But the judge looked at here thefact that this man had some
idea that things were goingwrong over the past couple of
days, like the previous coupleof days, like he left work
thinking he couldn't safelyoperate equipment and he seemed
to kind of degrade over a coupleof days, eventually getting
(08:14):
into this completely psychoticstate.
A pretty good balancing is, thejudge concluded.
Look, even though he may havenot had any capacity to do
anything or recognize thestandard of care at the time
when he was so deep into thispsychosis that he thought there
were demons on motorcycles, hewasn't in that state for the
(08:35):
whole period of time.
He seemed to recognize that hehad periods, while his memory as
to what was going on over thepreceding two or three days was
spotty.
There was like evidence fromhis girlfriend at the time that
he seemed lucid and fine on thephone.
Uh, you know that morning.
But then, like shortly beforehe did this, he had stopped his
car and phoned her and she wasclearly very concerned that he
(08:56):
had, you know, had lost touchwith reality to the point where
she phoned like nine one onething, oh my God, and told him
don't drive, pulled out and wentand did this right.
But the idea of the liabilityhere and a similar approach
might be taken to somebody whodrinks a whole lot of alcohol,
(09:17):
right, the idea that, hey,you're drinking, you're drinking
, you're getting really drunk,you're getting really drunk and
then you're blackout drunk whenyou hop in your car and go and
hit somebody, right, you canalso make.
Well, I can appreciate at thetime you just passed out in your
car, but the analysis isn'tyour obligation or your duty of
care extends beyond that lastmoment when you passed out.
(09:37):
From all the alcohol you drank,right.
And so that was the approachthe judge applied here and found
that, even though at that lastminute, in the last few minutes,
he didn't have that kind ofcapacity, there was still
negligence which is much lower.
Punishing him, we're justsorting out liability money
really, and so that wassufficient.
Also, interestingly, the judgefound that the ex-girlfriend is
(09:59):
also liable because it's hervehicle and she had allowed him
to use the vehicle and, eventhough she got this final phone
call from him, told him you know, my God, don't drive, don't go
anywhere, and phoned 911 andcalled his brother and tried to
stop him from driving beforethis happened.
There's a section of theinsurance motor vehicle or a
(10:19):
motor vehicle like Section 86,that when a person acquires a
motor vehicle with consent ofthe owner and he had, she'd let
him use her Audi you becomeliable for accidents that happen
with it and so, even though shetried to do things to intervene
, she's also on the hook for it.
And so at the end of the dayit's a substantial judgment.
(10:41):
The voice actor who wasseriously hurt.
He'd asked for $1.4 million.
He didn't get that but theaward was for $429,000.
And there are going to be someinteresting insurance issue
coverage issues here, because,for example, your ICBC coverage
again back at the time when wewere responsible for our actions
doesn't cover somebody whoengages in battery, like you're
(11:03):
not insured for intentionallyramming somebody with your car,
not surprisingly, how do youinsure that right?
So there's going to be a reallyinteresting issue here.
The claim was allowed on boththat battery and negligence.
No doubt negligence would becovered by the insurance, but it
may be, at the end of the day,this man who had the psychotic
break and, interestingly, noissue since he went to treatment
(11:25):
.
He took medication no problemfor the past six years.
This was a one-time thing.
By all accounts, he and hisex-girlfriend may wind up
personally on the hook on thebasis that the judge found
there's also liability inbattery, which isn't something
covered by your insurance.
So it's a fascinating case andthat's how sort of mental health
and so on can interface withnot only criminal liability but
(11:49):
civil liability.
And that was the latest fromthe BC Supreme supreme court
trying to sort out differentlaws all across the country and
all around the world michaelmulligan with mulligan defense
lawyers.
Adam Stirling (11:58):
Legally speaking will continue right after this
legally speaking continues oncfax 1070 with michael mulligan,
barrister solicitor, withmulligan defense lawyers.
Michael up next it says themisapplication of the step-up
principle results in a reducedjail sentence for contempt of
court multiple times, and it's amatter that we've been
following for years now.
Michael Mulligan (12:18):
It feels like that's true, and so it's one of
the cases that comes out ofthose flying squirrel protests
where there were a whole bunchof people convicted of criminal
contempt.
Ultimately and the case isnotable for several reasons it's
a court of appeal decisiondealing with a sentence imposed
on a woman, ms Davidson, who isa public figure in the sense
(12:39):
that she's a deputy leader ofthe Green Party and a candidate
in the upcoming federal electionin the Northwest Territories.
And Ms Davidson, in this case,had a trial and was ultimately
convicted of seven counts ofcriminal contempt for breaching
court orders restricting the wayin which people could protest
(13:01):
to try to stop logging.
And, as the trial judge and theCourt of Appeal point out here,
criminal contempt is an offensethat they quote strikes at the
heart of the rule of law, right.
Offense that they quote strikesat the heart of the rule of law
right.
You don't have the rule of law.
People just ignore laws thatthey don't like, even if they
feel strongly about it, which, Imust say, is it's rather ironic
that somebody convicted ofseven counts of criminal
(13:23):
contempt is running for election.
You wonder why bother if you'reinterested in participating in
making laws, if your positionappears to be just ignore them
if you don't like them.
That's a rather incongruentproposition, and so it's
interesting, of course, that sofar they're still having her
continue in that role, althoughI suppose influenced by the fact
(13:45):
that one of the co-leaders ofthe Green Party local candidate
here, ms May, was also convictedof criminal contempt on other
occasions, so maybe that temperstheir view of it.
But in any case, this woman isconvicted of these seven counts
of criminal contempt following atrial, and the Crown and
Defence have different positionson sentencing at the time.
(14:07):
The Crown's asking for, I think,51 days plus a period of
community work service andprobation, and Defence counsel
is asking for time served.
The woman had spent 12 days incustody, I guess, waiting during
her various arrests, I guess,and the judge in the case
interestingly imposes more thanwhat the Crown was asking for.
The Crown wanted 51 days, thejudge gives 60 days and the
(14:32):
arguments on the appeal theywere several, and the appeal was
conducted on behalf of thewoman by Mr Isset, former city
councillor here, who's obviouslydoing a good job for his client
.
Lots of interesting legalarguments here, but it flows
from a case NAHANE.
(14:53):
It's a case that went to theSupreme Court of Canada, which
stands for the proposition thatwhere a judge is going to impose
more like a longer sentence onwhat the Crown is asking for, a
judge is required to givecounsel an opportunity to make
further submissions about that,right, okay, well, the Crown is
(15:13):
asking for 51, I'm going to give60,.
What do you say about thatAnything more?
I should take into account,right, so he made that argument.
The Court of Appeal found thatdidn't have merit here because
the judge made clear in hisinteraction with Crown including
about that other concept, thatstep-up principle that made
clear that the judge had aconcern that the sentence the
Crown was asking for is notsufficient.
(15:34):
So it wasn't a circumstancewhere Defence Council didn't
have an opportunity to providemore information that might
explain why the sentence wouldbe appropriate, or the Crown to
provide more information aboutwhy they're taking the position.
They did.
That happened and the problemthat was identified was an issue
with how the judge applied thatthing.
You mentioned the step-upprinciple.
(15:56):
Now, the step-up principle isthe way it's sometimes expressed
is sort of the idea that youknow if you keep getting
convicted of the same thing,your sentence is going to go up,
which probably doesn't need aprinciple to establish it.
I'm sure anyone listening wouldthink, yeah, that kind of how
it's how it works, right?
You don't usually get lesserand lesser sentences if you just
(16:16):
keep doing the same thing,indeed.
But.
But the reason it was an issuehere the Court of Appeal
identified is how the judgeexpressed that in that
discussion with the Crown.
Remember, the Crown says we say51 days, crown's like well, hold
on a minute.
Is that really, taking intoaccount the repeated activity
here and the way the judgeexpressed it is a way that
(16:40):
sometimes you do hear itexpressed in court but it's not
quite right.
It is a way that sometimes youdo hear it expressed in court
but it's not quite right.
And what the judge expressed toCrown was the idea that he
expressed it this way.
The judge said surely she keepsgoing back, she keeps flaunting
the orders of the court, shekeeps disobeying them Each time,
successively, she does that.
Doesn't the step up principleoblige me?
(17:01):
Doesn't it oblige me?
Doesn't it suggest that foreach successive breach I found
there has to be an increase inthe sanction?
That's how the judge asked thequestion to Crown and this is
also an example of why it'simportant that judges, you know
everything in court is recorded.
It's public right and judgeshave to give reasons for what
they're doing.
So you can, like this, look atit afterwards.
(17:23):
Did they do it right?
And that concept, the Court ofAppeal pointed out, is the way
the judge expressed it.
The former now retired formerchief judge or the chief justice
of the province was wrong andthe Court of Appeal pointed out,
and there's previous authorityfor this.
And the Court of Appeal pointedout, and there's previous
(17:45):
authority for this, is that theconcept, the step-up principle,
does not require a judge toimpose greater and greater
sentences every time.
They might do that, right,they're not obliged to.
It's not a requirement, step-upprinciple.
Not only does it not require ajudge to increase sentences for
each count, like each timesomebody does something.
(18:06):
It in fact is a way to expressthe idea that there has to be a
measured increase, right, likeyou know, each time it shouldn't
be.
Well, you know, last time aperson got, you know, two weeks
for shoplifting, they shopliftedagain and the judge shouldn't
just say, okay, this time it'sgoing to be three years in
prison.
They shoplift it again and thejudge shouldn't just say, okay,
this time it's going to be threeyears in prison, right, the
idea properly expressed would be.
(18:27):
A judge can, of course, takethat into account.
It might impose a greatersentence, but there should be
consideration given to thesentence that occurred on the
last occasion and there shouldbe some sort of moderation or
measure in terms of how muchyou're increasing it.
And so the Court of Appealsexpressed it's not an obligation
to make it more, it is asuggestion or a requirement that
(18:50):
judges moderate how muchthey're jumping up each time,
which is a very different thing.
And so the Court of Appealsfound the judge was mistaken
when he expressed that idea thathe was obliged to impose more
than the Crown was asking for onthe basis of that principle.
The judge just didn't properlyunderstand that principle which,
in fairness to the judge,that's a subtle difference,
(19:11):
right, but it is a meaningfuldifference.
And it's another example of howthere are all kinds of
restraints on what a judge isallowed to do.
Right, judges aren't justunfettered kind of going off
imposing whatever sentence theykind of feel like that day.
This is an example of one ofthe kind of legal constraints,
because it's not an emotionalprocess, it's supposed to be a
(19:33):
process of reason and logic andconsistency and so on.
The other thing that's worthpointing out and some people may
not be aware of this is that wementioned that, that idea about
giving the lawyers a chance torespond or give additional
information if the judge isgoing to do more than what one
of them is asking for.
Right, that seems fair.
But the other thing peopleshould know about is there's
(19:54):
another Supreme Court-accountedcase, anthony Cook, that
actually restricts a judge'sability to depart when there's
an agreement between the twolawyers, like if the defense and
Crown make an agreement and saylook, okay, my client will
plead guilty to criminalcontempt if you, crown, would
agree to ask for, let's say, 45days and I'll agree to ask for
the same thing.
Right, you have a deal.
(20:15):
When that happens and it's madeclear to the judge that this is
a joint submission, bothlawyers have agreed and that's
the basis upon which the personpled guilty, in that case, a
judge has very little discretionto depart from it.
They can only be departing fromwhat both lawyers are asking
them to do.
If imposing what's being askedfor there would bring the
administration of justice intodisrepute, it's completely
(20:37):
inappropriate.
If people look at that and bewell, that's just outrageous.
I'm not doing that, right, thenthey can depart from it.
But short of that very high bar, a judge must do what they're
being told to do.
They can't monkey with it right, and the reason for the law
being that way is that otherwiseno case would resolve, like
everything would just go totrial.
If it was just a topsy-turvyworld where judges could do
(20:59):
whatever they felt like,regardless of whether there was
an agreement or not, you wouldnot have cases resolving, and
most criminal cases result by aguilty plea, and that's one of
the reasons why.
So that's another example ofhow judges can't just do
whatever they want.
In some cases, the lawyers havemuch more control over the
sentence than the judge would.
Now, this was a case wherethere wasn't a joint submission,
(21:21):
so the judge did have authorityto depart from it, didn't
breach that obligation to giveeach side a chance to say more,
because it made clear there wasa problem, but made a mistake in
terms of how he did it.
The net result the sentenceoriginally imposed was 60 days,
reduced by 12 for the timealready spent in jail, and the
Court of Appeal reduced that to51 days, what the Crown had
(21:41):
originally asked for.
Adam Stirling (21:42):
All right.
Michael Mulligan (21:43):
And so found that she'll need to serve 39
more days.
Also, interestingly said,she'll have to start serving
that on April the 24th, whichwill be just before the upcoming
federal election.
So I guess if she wants to votefor herself she'll need to do
that in an advanced poll.
Also interestingly, she wasgiven some time to start serving
it.
Often with these appeals aperson has to turn themselves in
(22:04):
before the appeal is heard andthen would continue serving it
if the jail sentence continues.
So that's the latest from MsDavison the sentence appeal and
the step-up principle.
Adam Stirling (22:11):
All right.
I believe her counsel issued apress release either yesterday
or the day before saying thatthey intend to appeal the matter
to the Supreme Court of Canadaand were hopeful to get bail as
early as today.
Michael Mulligan (22:20):
Well, you can always ask, but you don't get to
go to the Supreme Court ofCanada.
Because you're keen, you haveto ask permission no-transcript.
Adam Stirling (22:34):
Cfax 1070.
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