February 27, 2025 • 21 mins
Explore the intricate landscape of Canadian immigration law with us in this episode, where we unravel the surprising realities that can lead to deportation for long-term residents. Our primary focus is a captivating case involving a UK citizen who, after living in Canada for over 70 years, finds himself facing deportation due to organized criminality. The conversation sheds light on the legal definitions that can suddenly place an individual at risk, even for what may seem minor infractions.
Additionally, a heart-wrenching tale on an exploding stove illustrates the challenges individuals face within civil legal systems, highlighting the importance and protection that jury trials provide in civil matters.
As we continue our discussion, we touch on the implications of harsh pre-trial conditions, showing how they may alter parole eligibility for those convicted of murder. Listeners are encouraged to consider the broader context of these legal decisions and how they intersect with mental health and personal histories. This rich dialogue not only educates about the law but also reflects wider societal values and challenges.
Join us in this compelling conversation that not only informs but also provokes critical thinking on justice, fairness, and the legal hurdles many immigrants face. Don’t miss out—subscribe, leave a review, and share your thoughts with us!
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,Michael Mulligan.
Morning, Michael.
How are we doing?
Hey, good morning, I'm doinggreat.
Always good to be here.
Some interesting items on theagenda this week, including a
deportation of a UK citizenbrought to Canada when they were
only one year old.
Michael Mulligan (00:19):
Yeah, it is an interesting fact pattern and
there's a Victoria connection toit.
And so the person at issue, hisbackground, is exactly what
you've described.
He's now 73 years of age.
He's a UK citizen, his mombrought him here at age one and,
for reasons unknown, he neverdid apply for Canadian
citizenship.
And that can become a problemif you wind up in difficulty,
(00:47):
and this fellow has had a numberof allegations and challenges.
He was somebody who was locally.
There's a civil case involvingthis person and ownership of the
Sooke Harbour House andapparently a judgment against
him involving that issue and anissue, I think, with the
Security and Exchange Commissionover that, involving that issue
and an issue, I think, with theSecurity and Exchange
(01:07):
Commission over that.
But this particular caseinvolves a different section of
the Immigration and RefugeeProtection Act and this is, I
think, important for people toknow.
If you're somebody who is inCanada and you're a permanent
resident, there are a number ofprovisions in that act which can
lead to you becominginadmissible to remain in Canada
.
Some of them are probablyunsurprising.
(01:30):
Things like, for example, ifyou engage in an attempt to
subvert the government by forceprobably people would take that
or if you engage in terrorism orthings of that sort, which I
don't think would be surprisingreally to anyone, but there are
some sections in there.
Oh, another one you cansurprise you is if you commit an
(01:50):
act against the crimes againsthumanities and war crimes act,
that's also frowned upon.
But there are some sections inhere that can result in people
becoming inadmissible and beingremoved without any form of a
hearing at all.
And the one that can wind up, Ithink, surprising some people
is the definition of what'sreferred to as serious
(02:12):
criminality, and the way thatworks is that act defines
serious criminality as somebodywho's convicted of an offense
and is either in prison for aperiod of six months or more,
right, or you're convicted of anoffense which could be punished
by 10 years or more.
Regardless of what punishmentyou received, you could have
gotten a fine or something.
(02:33):
But there's a surprisingly longlist of offenses, things like
impaired driving or assault witha weapon that might be a
firearm, but it could also be aTV remote control or a shoe
right and if you end up beingconvicted of those things, they
simply constitute seriouscriminality and it makes you
inadmissible to remain in Canada.
So what that means is thatsomebody who might have been a
(02:55):
permanent resident living inCanada for 70 years or more can
find themselves deported withouta hearing on the basis that
they got convicted of, let's say, impaired driving or throwing a
shoe at somebody, and so peopleshould be really aware of that.
If you're lingering in terms ofmaking an application to become
(03:15):
a Canadian citizen, now, thisparticular person and this was a
case that was a judicial reviewof an immigration decision was
another section of thatImmigrant and Refugee Protection
Act that also makes somebodyinadmissible if you engage in
what is defined in here asorganized criminality, and
(03:41):
that's a little different fromwhat I've told you about.
In terms of the seriouscriminality.
It's a different section,section 37 of that act, and this
one actually involves some formof a judgment call, whereas
with the serious criminality,simply if you are convicted of
one of those things an offensethat you could receive 10 years
or more, regardless of whatsentence you impose, really
(04:04):
that's it, you're out.
The organized criminalitysection involves a judgment call
being made by the immigrationpeople federally about whether
they believe on reasonablegrounds that you are a member of
an organization that's engagedin activity or a pattern of
criminal activity planned ororganized by a number of persons
(04:26):
acting in concert.
Now that's interesting, right,because first of all, it's sort
of believing reasonable groundspattern, right, and so you can
imagine, you know, you don'teven need to have been convicted
, right?
If they simply believe onreasonable grounds that you are
in that category, then you areinadmissible.
(04:49):
If you're not a Canadiancitizen, and out you go.
Now it does provide a savingprovision that if you, basically
if you're trafficked intoCanada very virtually the only
by virtue of the fact that youwere entered Canada by persons
involved in criminal activitylike, let's say, somebody, some
person pays money and a smugglersmuggles you into Canada, that
(05:12):
doesn't get you into thiscategory of organized
criminality, but a whole lot ofthings could, and again, it's on
the standard of belief,reasonable grounds to believe.
And so this fellow thedetermination was made that
there reasonable grounds tobelieve.
And so this fellow thedetermination was made that
there are reasonable grounds tobelieve that in this case he was
engaged in a Ponzi scheme inAlabama between 2009 and 2013.
(05:36):
And so, on that basis, he wasordered being inadmissible and
ordered deported.
And he's done various things totry to challenge that,
including there's kind of thisfaint hope provision where you
can write to the ministerpleading for an exemption.
He hasn't got a response tothat.
He tried applying forcitizenship.
(05:56):
That was refused and then hetried to judicially review like,
have a judge in this case it'sfederal court, it's a federal
immigration decision asking thatthere be a judicial review of
that decision that he engaged inorganized criminality.
But that's a pretty limitedreview.
(06:18):
It's just was that conclusion areasonable one?
Right A judge doesn't have justkind of wide roaming discretion
to determine whether this lawis good, bad or otherwise.
And so what was just determinedis no, the conclusion that
there were reasonable grounds tobelieve that he'd engaged in
this Ponzi scheme in Alabama.
That was reasonable.
And given that conclusion, hetherefore is inadmissible.
(06:41):
And so various arguments aboutbeing old or living here for 72
to 73 years, or health concernsor various other things.
You know it's really, yeah, theythought about that, but out you
go.
And so it's just important forpeople to know you're here kind
of on tender hooks if you're nota Canadian citizen.
And so many of these provisions, I think, come as quite a
(07:03):
surprise.
Most people, I think, would besurprised to know.
You know, of course nobodyshould throw shoes at people or
nobody should impair driving isa very serious matter.
But what do we want?
To have a system which involvesa automatic deportation for
somebody who might have beenhere for 72 or 73 years, if any
of those things happen, you know.
(07:23):
Other things in here I thinkare uncontroversial If you're
engaged in war crimes or tryingto overthrow the government,
fair enough.
But it does seem to me thereshould be a little bit of
discretion to take some of thosethings into account.
But at least in terms of thisfellow, out he goes.
So that's how the ImmigrationRefugee Protection Act operates
to make people inadmissible tostay here.
Adam Stirling (07:45):
Very well, let's take our first break.
Legally Speaking with MichaelMulligan from Mulligan Defence
Lawyers will continue rightafter this.
Legally speaking continues hereon CFAX 1070 in the second hour
of or excuse me, the secondhalf of our second hour on a
Thursday.
Michael Mulligan with MulliganDefense Lawyers.
Michael, our next story.
It says the plaintiff in aVictoria civil claim over an
exploding stove will get to havea jury decide the case.
(08:08):
What happened here?
Michael Mulligan (08:10):
Nothing good, nothing good.
So, first of all, with respectto jury trials, you have a
constitutional right to a juryin a criminal case if you're
facing five years or more inprison, so that's protected
constitutionally.
We do also have, as a commonlaw right, the right to a jury
trial in a civil case, andeither the plaintiff or
(08:30):
defendant can request a jurytrial.
Civil juries in BC have eightpeople on them rather than 12,
so it's a smaller number.
In my view, it's very importantthat we have juries as an
available option, both civillyand criminally, because it
brings community values to thejustice system, both civil and
(08:54):
criminal, and that's reallyimportant.
It's also, I think, importantin order to sort of maintain
confidence in the system, and Ithink it's important because
people who serve on juries andmake decisions of course go back
into the community and talkabout what that process was.
So I do think it's veryimportant.
But you don't have aconstitutional right to a jury
(09:14):
trial in a civil case.
The other party can try to stopyou from having one, and so
this is a Victoria case, and thefact pattern is a very
unfortunate one.
It's a fact pattern thatinvolves a fellow who's now
almost 57.
He was 50 at the time.
He was a geological engineer,worked as a consultant in the
(09:36):
forest industry, butunfortunately, back in 2017,
this fellow and his wifepurchased a Blue Star natural
gas stovetop and oven range.
Go check if you still have oneof those.
They were recalled.
And shortly after this incident,in fact, and then on September
8th 2018, what happened is hewas cooking, turned on the oven
(10:01):
to heat it up to 325.
He turned on the convection fan.
That may have been the problem,and I should say that the stove
manufacturer pleads that theinstructions say don't turn on
the convection fan whenpreheating.
You know that's labeled clearly.
Oh no, you can see what'slabeled clearly.
Oh no, you can see what's goingto happen next.
Yeah, you turn it on.
It wasn't getting.
There's a little light, youknow, on your stove that shows
(10:21):
when it's gotten hot enough, andthe light wasn't going off, and
so he tried turning thetemperature down to see.
You know, if you turn it down,sometimes the light will go off.
You see how hot it is.
It's now at 300.
Well, it wasn't going off.
And so he opened the door and hedecided to stick his head in to
see whether it was warm.
And about a second after hestuck his head in, he saw a
(10:44):
bright fireball that turned blue.
His face and head were engulfedin flames and he was thrown
three meters back.
The theory of it it was theinteresting theory is that the
fan might have prevented thepilot light from lighting the
gas natural gas lighting it andthen the stove filled up to the
point where there was so much,such a high concentration of
(11:04):
natural gas it won't burn, ifyou have like.
Not enough oxygen, just a wholebunch of natural gas that
actually won't light on fire,interestingly.
And then, when he opened thedoor, oxygen went in.
Now you've got oxygen and a lotof natural gas and oxygen.
Boom, now that's the very end.
(11:43):
And so he requested a jury trial, and it's quite a trial.
It sounds like they're expectedto take 25 days to conduct this
trial in Victoria 26 laywitnesses and 22 experts and 500
pages of expert reports.
Wow, that's expensive.
So that is expensive.
And it also brings me to sortof when can you avoid having a
(12:06):
jury trial?
And the stove manufacturer istrying to prevent the jury trial
in this case, I see, and youcan avoid a jury trial if you
have issues which require aprolonged examination of
documents or accounts, orscientific or local
investigation that cannot bemade conveniently by a jury, or
(12:27):
the issues are such an intricateor complex character that it
wouldn't be appropriate for ajury.
Those are the arguments thatare made Now that required the
judge in this case to sort of.
Well, is it that right?
And one of the central issues agrim smile on my face as I read
this the expert for the manindicated that what happened
(12:49):
here was an explosion and thedefense, or part of the defense,
from the stove manufacturer isthat it wasn't an explosion, it
was merely a flash fire.
Adam Stirling (12:58):
I was actually going to mention that, with the
percussive force required toknock a man back several meters,
that's just unheard of.
Michael Mulligan (13:07):
Anyway, you might be a great person for the
jury, but I'm not an expert atthese things, but still, it's
just wow, it's shocking to hearthis.
So the one of the legal, one ofthe technical issues would be
was this a flash fire or wasthis an explosion?
Adam Stirling (13:20):
Yeah.
Michael Mulligan (13:20):
And I guess that would impact on like how
much pressure would have hit hishead Exactly To try to.
You know, was this a concussionor is this a psychological
effect of being lit on fire,serious burns and all this?
What was this?
Now I also got to say thisabout all of those factors.
You know, judges are notexperts on flash fires or
explosions either.
(13:40):
They're just not right.
Judges or lawyers have beenaround for a while and agreed to
go and do that, and so you know, I think we should have
confidence in the communitymembers being able to deal with
issues like that.
You know, that's not somethingthat's sort of beyond people's
comprehension, right, whetherit's convenient, whether there
(14:03):
are a lot of documents.
One thing I think we could doto improve that is, I think we
could and should increase theamount that we are paying jurors
.
Yes, they are compensated toget twenty dollars a day for the
first 10 days of the trial.
That's not even getting you topark downtown these days, your
head.
If you could park for that,you're probably not getting
coffee.
And then, if you go on from 11to 49 days, it's $60 per day.
(14:27):
Maybe then you're gettingcoffee, but maybe not a fancy
one at Starbucks, it better be asmall.
Now that I think we need tochange, because one of the
effects of having such low ratesis people just some can't
function.
And so people say look, I can'tpay my babysitter, I can't pay
my rent, I can't park my car, Ican't get gas right, and so you
(14:47):
wind up with people trying toavoid jury service because it
becomes economically impossible.
So you wind up with juriescomprised of people who are
retired or have jobs which theyare compensated for, and that's
not everyone in the, that's notthe whole community.
So that, I think, is somethingwe could fix.
But in this particular case,analyzing all of those things,
and the judge said look, yep,this is a yielder, lots of
(15:08):
documents to look at here andthere's other medical evidence
about yielder.
What caused the problems forthis fellow?
Ultimately he concluded thatthis was not a case that a jury
would not be able to fairlyconduct, and so the application
by the stove manufacturer tostop the civil jury was
unsuccessful.
(15:28):
And you know, judge said look,I've got to cumulatively
consider all those variousthings.
And yes, it's a longer trialand yes, there are reports, and
yes, there are disagreementsabout whether it was a fireball
or an explosion, but jury canhandle that, which seems to me
just about right, and so the netresult of that is that this
fellow will get his trial, andhe will get it with members of
(15:51):
the community deciding it.
You know whether that producessome kind of a resolution from
the stove manufacturer, I'm notsure, but there it is.
Also, check carefully, makesure you don't have that stove A
few days after this, be it afireball or explosion.
They were recalled, and so ifyou have anything like that
(16:12):
hanging around and that didn'toccur don't stick your head in
it.
And whatever you do, make sureyou read the fine print in the
instruction manual about don'tturn the fan on for preheating.
That may have been the problem.
So that's the latest on civiljuries in.
Adam Stirling (16:25):
Victoria.
Five minutes and 20 secondsremain in our segment today.
Item three harsh pre-trialdetention conditions, it says,
can be considered when decidingparole ineligibility for murder.
How would that work?
How would parole for murder bedetermined by the conditions in
which one was held before trial?
Michael Mulligan (16:44):
Yeah, the way that works and this is a case
it's a court of appeal decisionfrom the Yukon Court of Appeal,
which is actually just the BCCourt of Appeal judges with a
different hat on.
They don't have their own courtof appeal, they use ours, or
maybe, from their perspective,we're using theirs.
But in any case, it's adecision from the court of
appeal there.
The way it works is that whenyou're convicted of
(17:08):
second-degree murders thisfellow was you're automatically
sentenced to life in prison, butyour parole ineligibility can
be anywhere from 10 to 25 years.
The judge has to decide that.
And the particular issue herewas should or can the trial
judge take into account harshconditions in pretrial custody
to determine as a factor whendetermining how long the parole
(17:29):
ineligibility should be?
And again, eligibility forparole does not mean parole.
It just means you may askpolitely.
You may well be told no yes um,now, the fact pattern in this
case is a serious one.
The fact pattern involves theaccused, in a remote location,
was trying to purchase crackcocaine from somebody who he
intended to rob with a loadedshotgun.
A person resisted, struggling,sued and accidentally the
(17:54):
shotgun discharged through thepassenger window and then the
other person tried to take off.
And then the fellow fired twomore shots from the shotgun,
which hit him.
I must say the court of appealhere described it as a bullet
entering his back.
But one thing that does notcome out of shotguns are bullets
.
It would be shot or maybe aslug, but be that as it may, he
(18:17):
got hit and he died.
The fellow then went andretrieved the shotgun shells,
disposed of the body that wasfound by mushroom pickers and
cleaned the truck.
But despite those efforts, heultimately was convicted.
Now, what were the conditionshere?
Well, the conditions, the harshconditions, flowed from what
work this fellow had done for anumber of years.
(18:39):
He was 40 years of age, thefellow who was convicted, and he
had no previous criminalhistory, which is not surprising
given that for a number ofyears he worked at the
Whitehorse Correctional Center,sounds like he was a jail guard
and, as you might imagine, beingheld in custody in a jail where
you were once a jail guard isnot going to be a pleasant or
(19:03):
safe experience, and so theresult of that was that for a
period of about 18 months, Iguess, while he was in custody
waiting for his trial, he woundup being in virtual solitary
confinement, and it wasn't aresult of misbehavior on his
part when he was in custody.
(19:24):
You know, sometimes a personwill be put in solitary
confinement because they'reattacking or threatening people
or something.
There was none of that.
He was put there becauseotherwise he would likely be
killed by the other inmates, andso being in that kind of
virtual isolation for a verylong time has really negative
implications for people, and thejudge here accepted that, as a
(19:48):
result of this 18 months in whatamounted to segregation, it had
adverse impacts on, for example, his mental health.
Right, you just imagine whatthat's like if you're sitting in
isolation, not talking toanyone, for more than a year and
there's medical evidence, whichthe judge accepted, that it was
harsh conditions and it didnegatively impact his mental
health.
But the trial judge here and Ishould say it's also an
(20:12):
interesting case because it wasa case that occurred without a
jury.
Murder trials are with the juryunless both Crown and the
defense agree not to have a jury, and so there was no jury here.
That's also relevant to theparole ineligibility, because if
there's a conviction ofsecondary murder, juries are
actually asked to recommend whatthey think would be an
appropriate parole ineligibilityperiod.
(20:34):
It's not binding, but they makea recommendation that a judge
has to take into account whendeciding what to do.
So that didn't exist herebecause there was no jury.
And so ultimately here the judgeconcluded that it was not
appropriate to take into accountthe harsh conditions and so
imposed a parole ineligibilityperiod of 13 years.
The Court of Appeal disagreed,they split 2-1.
(20:58):
And the Court of Appeal of theYukon, which is also our Court
of appeal, concluded that no, itis appropriate to take into
account all of those kinds offactors, including the impact of
those harsh conditions, and sothat's now the law in the Yukon
and effectively in BC.
And they determined that whilethe life sentence doesn't change
any, taking that into account,it would be appropriate to set
(21:22):
the parole ineligibility at 12years rather than 13 years,
which again doesn't mean he getsout then, it just means he can
ask one year earlier, and sothat's the latest from the Yukon
Court of Appeal and that's howyour harsh conditions can impact
potentially on how long youmight have to wait to ask for
parole if you're convicted ofsecond-degree murder.
Adam Stirling (21:43):
Legally speaking on CFax 1070 with Michael
Mulligan from Mulligan DefenseLawyers.
Michael, pleasure as always.
Thank you so much.
Thanks so much.
Always great to be here.
All right, talk to you soon.
Bye now.
It's time for our regular segment Legally
Speaking, joined as always bybarrister and solicitor with
Mulligan Defence Lawyers,Michael Mulligan.
Morning, Michael.
How are we doing?
Hey, good morning, I'm doinggreat.
Always good to be here.
Some interesting items on theagenda this week, including a
deportation of a UK citizenbrought to Canada when they were
only one year old.
Michael Mulligan (00:19):
Yeah, it is an interesting fact pattern and
there's a Victoria connection toit.
And so the person at issue, hisbackground, is exactly what
you've described.
He's now 73 years of age.
He's a UK citizen, his mombrought him here at age one and,
for reasons unknown, he neverdid apply for Canadian
citizenship.
And that can become a problemif you wind up in difficulty,
(00:47):
and this fellow has had a numberof allegations and challenges.
He was somebody who was locally.
There's a civil case involvingthis person and ownership of the
Sooke Harbour House andapparently a judgment against
him involving that issue and anissue, I think, with the
Security and Exchange Commissionover that, involving that issue
and an issue, I think, with theSecurity and Exchange
(01:07):
Commission over that.
But this particular caseinvolves a different section of
the Immigration and RefugeeProtection Act and this is, I
think, important for people toknow.
If you're somebody who is inCanada and you're a permanent
resident, there are a number ofprovisions in that act which can
lead to you becominginadmissible to remain in Canada
.
Some of them are probablyunsurprising.
(01:30):
Things like, for example, ifyou engage in an attempt to
subvert the government by forceprobably people would take that
or if you engage in terrorism orthings of that sort, which I
don't think would be surprisingreally to anyone, but there are
some sections in there.
Oh, another one you cansurprise you is if you commit an
(01:50):
act against the crimes againsthumanities and war crimes act,
that's also frowned upon.
But there are some sections inhere that can result in people
becoming inadmissible and beingremoved without any form of a
hearing at all.
And the one that can wind up, Ithink, surprising some people
is the definition of what'sreferred to as serious
(02:12):
criminality, and the way thatworks is that act defines
serious criminality as somebodywho's convicted of an offense
and is either in prison for aperiod of six months or more,
right, or you're convicted of anoffense which could be punished
by 10 years or more.
Regardless of what punishmentyou received, you could have
gotten a fine or something.
(02:33):
But there's a surprisingly longlist of offenses, things like
impaired driving or assault witha weapon that might be a
firearm, but it could also be aTV remote control or a shoe
right and if you end up beingconvicted of those things, they
simply constitute seriouscriminality and it makes you
inadmissible to remain in Canada.
So what that means is thatsomebody who might have been a
(02:55):
permanent resident living inCanada for 70 years or more can
find themselves deported withouta hearing on the basis that
they got convicted of, let's say, impaired driving or throwing a
shoe at somebody, and so peopleshould be really aware of that.
If you're lingering in terms ofmaking an application to become
(03:15):
a Canadian citizen, now, thisparticular person and this was a
case that was a judicial reviewof an immigration decision was
another section of thatImmigrant and Refugee Protection
Act that also makes somebodyinadmissible if you engage in
what is defined in here asorganized criminality, and
(03:41):
that's a little different fromwhat I've told you about.
In terms of the seriouscriminality.
It's a different section,section 37 of that act, and this
one actually involves some formof a judgment call, whereas
with the serious criminality,simply if you are convicted of
one of those things an offensethat you could receive 10 years
or more, regardless of whatsentence you impose, really
(04:04):
that's it, you're out.
The organized criminalitysection involves a judgment call
being made by the immigrationpeople federally about whether
they believe on reasonablegrounds that you are a member of
an organization that's engagedin activity or a pattern of
criminal activity planned ororganized by a number of persons
(04:26):
acting in concert.
Now that's interesting, right,because first of all, it's sort
of believing reasonable groundspattern, right, and so you can
imagine, you know, you don'teven need to have been convicted
, right?
If they simply believe onreasonable grounds that you are
in that category, then you areinadmissible.
(04:49):
If you're not a Canadiancitizen, and out you go.
Now it does provide a savingprovision that if you, basically
if you're trafficked intoCanada very virtually the only
by virtue of the fact that youwere entered Canada by persons
involved in criminal activitylike, let's say, somebody, some
person pays money and a smugglersmuggles you into Canada, that
(05:12):
doesn't get you into thiscategory of organized
criminality, but a whole lot ofthings could, and again, it's on
the standard of belief,reasonable grounds to believe.
And so this fellow thedetermination was made that
there reasonable grounds tobelieve.
And so this fellow thedetermination was made that
there are reasonable grounds tobelieve that in this case he was
engaged in a Ponzi scheme inAlabama between 2009 and 2013.
(05:36):
And so, on that basis, he wasordered being inadmissible and
ordered deported.
And he's done various things totry to challenge that,
including there's kind of thisfaint hope provision where you
can write to the ministerpleading for an exemption.
He hasn't got a response tothat.
He tried applying forcitizenship.
(05:56):
That was refused and then hetried to judicially review like,
have a judge in this case it'sfederal court, it's a federal
immigration decision asking thatthere be a judicial review of
that decision that he engaged inorganized criminality.
But that's a pretty limitedreview.
(06:18):
It's just was that conclusion areasonable one?
Right A judge doesn't have justkind of wide roaming discretion
to determine whether this lawis good, bad or otherwise.
And so what was just determinedis no, the conclusion that
there were reasonable grounds tobelieve that he'd engaged in
this Ponzi scheme in Alabama.
That was reasonable.
And given that conclusion, hetherefore is inadmissible.
(06:41):
And so various arguments aboutbeing old or living here for 72
to 73 years, or health concernsor various other things.
You know it's really, yeah, theythought about that, but out you
go.
And so it's just important forpeople to know you're here kind
of on tender hooks if you're nota Canadian citizen.
And so many of these provisions, I think, come as quite a
(07:03):
surprise.
Most people, I think, would besurprised to know.
You know, of course nobodyshould throw shoes at people or
nobody should impair driving isa very serious matter.
But what do we want?
To have a system which involvesa automatic deportation for
somebody who might have beenhere for 72 or 73 years, if any
of those things happen, you know.
(07:23):
Other things in here I thinkare uncontroversial If you're
engaged in war crimes or tryingto overthrow the government,
fair enough.
But it does seem to me thereshould be a little bit of
discretion to take some of thosethings into account.
But at least in terms of thisfellow, out he goes.
So that's how the ImmigrationRefugee Protection Act operates
to make people inadmissible tostay here.
Adam Stirling (07:45):
Very well, let's take our first break.
Legally Speaking with MichaelMulligan from Mulligan Defence
Lawyers will continue rightafter this.
Legally speaking continues hereon CFAX 1070 in the second hour
of or excuse me, the secondhalf of our second hour on a
Thursday.
Michael Mulligan with MulliganDefense Lawyers.
Michael, our next story.
It says the plaintiff in aVictoria civil claim over an
exploding stove will get to havea jury decide the case.
(08:08):
What happened here?
Michael Mulligan (08:10):
Nothing good, nothing good.
So, first of all, with respectto jury trials, you have a
constitutional right to a juryin a criminal case if you're
facing five years or more inprison, so that's protected
constitutionally.
We do also have, as a commonlaw right, the right to a jury
trial in a civil case, andeither the plaintiff or
(08:30):
defendant can request a jurytrial.
Civil juries in BC have eightpeople on them rather than 12,
so it's a smaller number.
In my view, it's very importantthat we have juries as an
available option, both civillyand criminally, because it
brings community values to thejustice system, both civil and
(08:54):
criminal, and that's reallyimportant.
It's also, I think, importantin order to sort of maintain
confidence in the system, and Ithink it's important because
people who serve on juries andmake decisions of course go back
into the community and talkabout what that process was.
So I do think it's veryimportant.
But you don't have aconstitutional right to a jury
(09:14):
trial in a civil case.
The other party can try to stopyou from having one, and so
this is a Victoria case, and thefact pattern is a very
unfortunate one.
It's a fact pattern thatinvolves a fellow who's now
almost 57.
He was 50 at the time.
He was a geological engineer,worked as a consultant in the
(09:36):
forest industry, butunfortunately, back in 2017,
this fellow and his wifepurchased a Blue Star natural
gas stovetop and oven range.
Go check if you still have oneof those.
They were recalled.
And shortly after this incident,in fact, and then on September
8th 2018, what happened is hewas cooking, turned on the oven
(10:01):
to heat it up to 325.
He turned on the convection fan.
That may have been the problem,and I should say that the stove
manufacturer pleads that theinstructions say don't turn on
the convection fan whenpreheating.
You know that's labeled clearly.
Oh no, you can see what'slabeled clearly.
Oh no, you can see what's goingto happen next.
Yeah, you turn it on.
It wasn't getting.
There's a little light, youknow, on your stove that shows
(10:21):
when it's gotten hot enough, andthe light wasn't going off, and
so he tried turning thetemperature down to see.
You know, if you turn it down,sometimes the light will go off.
You see how hot it is.
It's now at 300.
Well, it wasn't going off.
And so he opened the door and hedecided to stick his head in to
see whether it was warm.
And about a second after hestuck his head in, he saw a
(10:44):
bright fireball that turned blue.
His face and head were engulfedin flames and he was thrown
three meters back.
The theory of it it was theinteresting theory is that the
fan might have prevented thepilot light from lighting the
gas natural gas lighting it andthen the stove filled up to the
point where there was so much,such a high concentration of
(11:04):
natural gas it won't burn, ifyou have like.
Not enough oxygen, just a wholebunch of natural gas that
actually won't light on fire,interestingly.
And then, when he opened thedoor, oxygen went in.
Now you've got oxygen and a lotof natural gas and oxygen.
Boom, now that's the very end.
(11:43):
And so he requested a jury trial, and it's quite a trial.
It sounds like they're expectedto take 25 days to conduct this
trial in Victoria 26 laywitnesses and 22 experts and 500
pages of expert reports.
Wow, that's expensive.
So that is expensive.
And it also brings me to sortof when can you avoid having a
(12:06):
jury trial?
And the stove manufacturer istrying to prevent the jury trial
in this case, I see, and youcan avoid a jury trial if you
have issues which require aprolonged examination of
documents or accounts, orscientific or local
investigation that cannot bemade conveniently by a jury, or
(12:27):
the issues are such an intricateor complex character that it
wouldn't be appropriate for ajury.
Those are the arguments thatare made Now that required the
judge in this case to sort of.
Well, is it that right?
And one of the central issues agrim smile on my face as I read
this the expert for the manindicated that what happened
(12:49):
here was an explosion and thedefense, or part of the defense,
from the stove manufacturer isthat it wasn't an explosion, it
was merely a flash fire.
Adam Stirling (12:58):
I was actually going to mention that, with the
percussive force required toknock a man back several meters,
that's just unheard of.
Michael Mulligan (13:07):
Anyway, you might be a great person for the
jury, but I'm not an expert atthese things, but still, it's
just wow, it's shocking to hearthis.
So the one of the legal, one ofthe technical issues would be
was this a flash fire or wasthis an explosion?
Adam Stirling (13:20):
Yeah.
Michael Mulligan (13:20):
And I guess that would impact on like how
much pressure would have hit hishead Exactly To try to.
You know, was this a concussionor is this a psychological
effect of being lit on fire,serious burns and all this?
What was this?
Now I also got to say thisabout all of those factors.
You know, judges are notexperts on flash fires or
explosions either.
(13:40):
They're just not right.
Judges or lawyers have beenaround for a while and agreed to
go and do that, and so you know, I think we should have
confidence in the communitymembers being able to deal with
issues like that.
You know, that's not somethingthat's sort of beyond people's
comprehension, right, whetherit's convenient, whether there
(14:03):
are a lot of documents.
One thing I think we could doto improve that is, I think we
could and should increase theamount that we are paying jurors
.
Yes, they are compensated toget twenty dollars a day for the
first 10 days of the trial.
That's not even getting you topark downtown these days, your
head.
If you could park for that,you're probably not getting
coffee.
And then, if you go on from 11to 49 days, it's $60 per day.
(14:27):
Maybe then you're gettingcoffee, but maybe not a fancy
one at Starbucks, it better be asmall.
Now that I think we need tochange, because one of the
effects of having such low ratesis people just some can't
function.
And so people say look, I can'tpay my babysitter, I can't pay
my rent, I can't park my car, Ican't get gas right, and so you
(14:47):
wind up with people trying toavoid jury service because it
becomes economically impossible.
So you wind up with juriescomprised of people who are
retired or have jobs which theyare compensated for, and that's
not everyone in the, that's notthe whole community.
So that, I think, is somethingwe could fix.
But in this particular case,analyzing all of those things,
and the judge said look, yep,this is a yielder, lots of
(15:08):
documents to look at here andthere's other medical evidence
about yielder.
What caused the problems forthis fellow?
Ultimately he concluded thatthis was not a case that a jury
would not be able to fairlyconduct, and so the application
by the stove manufacturer tostop the civil jury was
unsuccessful.
(15:28):
And you know, judge said look,I've got to cumulatively
consider all those variousthings.
And yes, it's a longer trialand yes, there are reports, and
yes, there are disagreementsabout whether it was a fireball
or an explosion, but jury canhandle that, which seems to me
just about right, and so the netresult of that is that this
fellow will get his trial, andhe will get it with members of
(15:51):
the community deciding it.
You know whether that producessome kind of a resolution from
the stove manufacturer, I'm notsure, but there it is.
Also, check carefully, makesure you don't have that stove A
few days after this, be it afireball or explosion.
They were recalled, and so ifyou have anything like that
(16:12):
hanging around and that didn'toccur don't stick your head in
it.
And whatever you do, make sureyou read the fine print in the
instruction manual about don'tturn the fan on for preheating.
That may have been the problem.
So that's the latest on civiljuries in.
Adam Stirling (16:25):
Victoria.
Five minutes and 20 secondsremain in our segment today.
Item three harsh pre-trialdetention conditions, it says,
can be considered when decidingparole ineligibility for murder.
How would that work?
How would parole for murder bedetermined by the conditions in
which one was held before trial?
Michael Mulligan (16:44):
Yeah, the way that works and this is a case
it's a court of appeal decisionfrom the Yukon Court of Appeal,
which is actually just the BCCourt of Appeal judges with a
different hat on.
They don't have their own courtof appeal, they use ours, or
maybe, from their perspective,we're using theirs.
But in any case, it's adecision from the court of
appeal there.
The way it works is that whenyou're convicted of
(17:08):
second-degree murders thisfellow was you're automatically
sentenced to life in prison, butyour parole ineligibility can
be anywhere from 10 to 25 years.
The judge has to decide that.
And the particular issue herewas should or can the trial
judge take into account harshconditions in pretrial custody
to determine as a factor whendetermining how long the parole
(17:29):
ineligibility should be?
And again, eligibility forparole does not mean parole.
It just means you may askpolitely.
You may well be told no yes um,now, the fact pattern in this
case is a serious one.
The fact pattern involves theaccused, in a remote location,
was trying to purchase crackcocaine from somebody who he
intended to rob with a loadedshotgun.
A person resisted, struggling,sued and accidentally the
(17:54):
shotgun discharged through thepassenger window and then the
other person tried to take off.
And then the fellow fired twomore shots from the shotgun,
which hit him.
I must say the court of appealhere described it as a bullet
entering his back.
But one thing that does notcome out of shotguns are bullets
.
It would be shot or maybe aslug, but be that as it may, he
(18:17):
got hit and he died.
The fellow then went andretrieved the shotgun shells,
disposed of the body that wasfound by mushroom pickers and
cleaned the truck.
But despite those efforts, heultimately was convicted.
Now, what were the conditionshere?
Well, the conditions, the harshconditions, flowed from what
work this fellow had done for anumber of years.
(18:39):
He was 40 years of age, thefellow who was convicted, and he
had no previous criminalhistory, which is not surprising
given that for a number ofyears he worked at the
Whitehorse Correctional Center,sounds like he was a jail guard
and, as you might imagine, beingheld in custody in a jail where
you were once a jail guard isnot going to be a pleasant or
(19:03):
safe experience, and so theresult of that was that for a
period of about 18 months, Iguess, while he was in custody
waiting for his trial, he woundup being in virtual solitary
confinement, and it wasn't aresult of misbehavior on his
part when he was in custody.
(19:24):
You know, sometimes a personwill be put in solitary
confinement because they'reattacking or threatening people
or something.
There was none of that.
He was put there becauseotherwise he would likely be
killed by the other inmates, andso being in that kind of
virtual isolation for a verylong time has really negative
implications for people, and thejudge here accepted that, as a
(19:48):
result of this 18 months in whatamounted to segregation, it had
adverse impacts on, for example, his mental health.
Right, you just imagine whatthat's like if you're sitting in
isolation, not talking toanyone, for more than a year and
there's medical evidence, whichthe judge accepted, that it was
harsh conditions and it didnegatively impact his mental
health.
But the trial judge here and Ishould say it's also an
(20:12):
interesting case because it wasa case that occurred without a
jury.
Murder trials are with the juryunless both Crown and the
defense agree not to have a jury, and so there was no jury here.
That's also relevant to theparole ineligibility, because if
there's a conviction ofsecondary murder, juries are
actually asked to recommend whatthey think would be an
appropriate parole ineligibilityperiod.
(20:34):
It's not binding, but they makea recommendation that a judge
has to take into account whendeciding what to do.
So that didn't exist herebecause there was no jury.
And so ultimately here the judgeconcluded that it was not
appropriate to take into accountthe harsh conditions and so
imposed a parole ineligibilityperiod of 13 years.
The Court of Appeal disagreed,they split 2-1.
(20:58):
And the Court of Appeal of theYukon, which is also our Court
of appeal, concluded that no, itis appropriate to take into
account all of those kinds offactors, including the impact of
those harsh conditions, and sothat's now the law in the Yukon
and effectively in BC.
And they determined that whilethe life sentence doesn't change
any, taking that into account,it would be appropriate to set
(21:22):
the parole ineligibility at 12years rather than 13 years,
which again doesn't mean he getsout then, it just means he can
ask one year earlier, and sothat's the latest from the Yukon
Court of Appeal and that's howyour harsh conditions can impact
potentially on how long youmight have to wait to ask for
parole if you're convicted ofsecond-degree murder.
Adam Stirling (21:43):
Legally speaking on CFax 1070 with Michael
Mulligan from Mulligan DefenseLawyers.
Michael, pleasure as always.
Thank you so much.
Thanks so much.
Always great to be here.
All right, talk to you soon.
Bye now.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!