February 13, 2025 • 22 mins
Unlock the secrets to challenging traffic citations and safeguarding your inheritance as we dissect intriguing legal scenarios from British Columbia. Ever wondered about the complexities behind those speed signs in construction zones? Discover how questioning their validity can shift the burden onto the Crown and how this impacts unsuspecting drivers. We'll shine a light on the legal presumptions that surround highway signage and discuss a recent case that brings these issues to the forefront, revealing the puzzling maze drivers might face when confronted with misleading or improperly erected signs.
On a different note, we venture into the delicate balance of family obligations and government policy through the lens of a thought-provoking case involving a Henson Trust. What happens when a woman seeks to protect her $1.8 million inheritance while ensuring her eligibility for government benefits? Hear the compelling arguments and judicial decisions that question societal norms about wealth and public resource accessibility. Plus, we're joined by Michael Mulligan from Mulligan Defence Lawyers, who shares his expert legal insights, helping you navigate the complexities of these fascinating cases. Don't miss this opportunity to gain valuable perspectives from an experienced legal mind.
Follow this link for a transcript of the show and links to the cases discussed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Adam Stirling (00:00):
It's time for Legally Speaking, joined as
(00:01):
always by barrister andsolicitor with Mulligan Defence
Lawyers, michael Mulligan withLegally Speaking.
Morning Michael.
How are we doing, hey?
Good morning, I'm doing great,always good to be here Up first
on the agenda.
I'm reading.
It says speeding and who needsto provide what the signs said.
What does that mean?
Michael Mulligan (00:19):
Yeah, so there are different speeding offenses
under the Motor Vehicle Act.
In BC there are default speedlimits, for example, inside and
outside of municipalities.
Like, inside a municipality,the default speed limit would be
50, right.
But you know, somemunicipalities are having
various lower speed limit signsput up all over the place, and
(00:40):
so there's another offense underthe Motor Vehicle Act, which is
speeding contrary to highwaysigns.
And so one of the issues thatarose in a recent case is what
is the presumption about ahighway sign having been
properly put up right?
(01:01):
Because you know, let's say,you just make up your own speed
sign and go and stick it upoutside your house, but when
anyone's driving more than 15kilometers an hour, does that
become an offense to you?
You get a ticket.
What happens?
Interesting and that's.
It sounds a little ridiculous,but in fact there are signs
sometimes put up by otherentities, like, for example,
(01:22):
maybe you're driving in a school, on a school property, maybe
you're driving in a shoppingmall or something right.
There might be some sign stuckup there, but that wasn't a sign
erected by some municipalgovernment.
That might be just some signthat the landlord of this
whatever mall parking lotdecided to put up right, and so
(01:42):
there are some provisionsdealing with this.
This particular case involvedsigns for what may or may not
have been a construction zoneand the particular fact pattern
in this case.
It involved a highway wherethere had been some roadwork
done, but it looked like thatmay have been essentially
completed Sunday.
The evidence was that from thepolice officer that the zone was
(02:06):
ordinarily 100 kilometer anhour zone, but there were some
orange signs put up which had aspeed limit of 70 on them, like
to do with construction, and thepolice officer's evidence was
that the 100 kilometer signs hadplastic bags put over them.
Now, the other interestingelement and the other evidence
(02:26):
here was that there were noworkers present.
It was a Sunday, a beautifulday, and the signs which
indicated it was a constructionzone had been turned sideways to
indicate they weren't actuallydoing any construction, and the
hapless person who was chargedthis is another problem pulled
onto the highway where therewere no 70-kilometer-an-hour
signs, like between where thesigns were but, leaving that
(02:48):
issue aside and the fellow wasgoing, according to the radar
check, between 99 and 100, sowhat the speed limit was?
So the issue was well, what isthe speed limit there?
He got a ticket for drivingcontrary to these highway signs.
And the starting point is thisPeople may not know about this
there's a section in the MotorVehicle Act, section 201, that
(03:10):
provides that the fact thatthere is a sign up is evidence
that the sign was duly erected.
Okay, so in an ordinary way,let's say there's what looks
like a speed sign that says 15kilometers an hour right outside
your house.
Well, that is evidence thatthere was a duly erected sign
put up there.
But the question that had to besorted out in this case is well
(03:33):
, what happens when there issome challenge made as to
whether that sign is properlythere?
Right, and in this case thejudge pointed out, or judicial
justice pointed out there areprovisions that both require
their signs to be put up whenthere's construction, saying
there's construction going onthose ones return sideways, and
it's also a requirement toremove temporary signs when
(03:55):
there's no longer any reason tohave them up.
And so what do you do when this, in this case, they seem to be
clear evidence.
Yeah, there were signs.
Usually it's 100.
The work signs were turnedsideways and no one's working.
What do you make of that sortof presumption, or the
presumption of regularity theywould call it?
Like if there's a sign there,we start from the presumption
that it's a properly put up sign.
(04:16):
Well, the judicial justiceanalyzed it from this
perspective.
He said, okay, well, yes, thatis some evidence that was
properly put up, but it's notconclusive evidence.
And so they then went throughwhat kind of evidence to the
contrary has to be establishedto establish that it's not a
proper sign?
It's one that, you know, adammade up and put in front of his
(04:38):
house, or one that might havebeen put up by the shopping mall
, or some sign that was left upwhen it shouldn't have been.
Well, it's not even arequirement to prove it beyond a
reasonable doubt, and even abalance of probabilities is too
much.
And so what the judicialjustice pointed out, referring
to a Supreme Court of Canadacase, is that once there's
evidence that raises what isreferred to as an air of reality
(05:01):
, to the idea that that signmight not properly be there,
like it looked, like it was madein crayon or it was smaller
than all the other signs, orwhatever right something that
would call into question.
Is that real?
Should that be there?
Did they just leave it up bymistake?
What's going on?
Once there's something that getsover that reasonably low
threshold of air of reality,then the onus then shifts to the
(05:23):
crown to prove beyond areasonable doubt that the sign
was properly erected right.
Was there a legislative basisto put that thing up?
Uh, and here, uh, that didn'texist, and so certainly that the
judicial justice found that,given that the work signs return
sideways, there were no workerson the highway and there is a
(05:44):
requirement to take down signswhen there's not work going on,
and that didn't happen here.
Now, I should say there's alsothis obligation to put up signs
when there is new construction,widening of a road, repair,
marking or other work is beingcarried out.
So I guess there'd be someissue about what or other work
is being carried out.
So I guess there'd be someissue about what does it mean by
is being carried out.
(06:05):
Does that mean right now?
Maybe on Monday we'll do that,but certainly, given the
ambiguity of what was going on,and there were also pictures of
what was going on and the policeofficer agreed yeah, it's
usually 100, and there's thesebags on them and other signs
return sideways.
Once you get to that justrelatively low threshold of
error reality about whetherthese things are properly there,
(06:26):
then the burden's on the Crown,and if they don't lead evidence
to prove beyond a reasonabledoubt there's proper legal
authority to put these things up, the signs, then the result is
there's not enough evidence andyou're found not guilty, and
that's what happened here.
And so it's just important toknow how that structure works.
If somebody finds themselves intraffic court and it's
(06:47):
ambiguous as to whether the signwas real or not, or should have
been there or not, as soon asthere's an air of reality to
that question, crown's got toprove it.
It's not enough to just say,yeah, there's a sign that said
15 kilometers, right out infront of Adam's house.
That's not going to do it, andso that's the latest from the
provincial court on speeding andsigns.
Adam Stirling (07:07):
Michael Mulligan with Mulligan Defence Lawyers,
legally speaking.
We'll continue right after thiscommercial break.
All right, we're back on theair here at CFAX 1070 as we
continue with Michael Mulligan,with Mulligan Defence Lawyers,
legally speaking.
Up next on our agenda can awill, it says here, be varied to
put money in a trust so thebeneficiary can keep government
benefits?
Michael Mulligan (07:27):
michael indeed and we've spoken before about
applications under the wills,estates and succession act,
often referred to the provisionsas wills, variation
applications and the provisionsof that act allow somebody to
make an application if they'rethe spouse or child of somebody
(07:48):
who made a will, arguing thatthey did not make quote adequate
provision for the propermaintenance and support of
either a spouse or childrenunder the will.
Now it's quite interesting thatthe section requires a judge to
determine whether the will, interms of support left, was, in
(08:09):
light of current societal, legaland moral norms, whether the
amount of support left wasadequate.
So there's really pretty broadauthority if somebody tries to
cut a child or spouse out of awill or whatever.
Now, this particular case isinteresting because it was
actually the reverse argument.
It was somebody effectivelyarguing I can't get all this
money, I'll lose my benefits,and so it was an application by
(08:33):
a 63-year-old adult child andthe substantial estate.
The mother who passed away hadan estate which pretty
uncontroversially, left smallbequeaths to her two
grandchildren and then equallydivided the estate amongst the
three children, and each ofthose beneficiaries would wind
up with something north of $1.8million, so not an insubstantial
(08:57):
amount of money.
And so why would somebody notwant to get $1.8 million?
Well, this particular person wasthe beneficiary of various
social benefits, includingsubsidized social housing, and
to that end, she had a placethat she sounds like very much
liked over in Vancouver in asubsidized facility, and
(09:22):
described where she was livingas a quarter unit, and it was a
quiet location and a quiet partof Vancouver and she really
liked it and didn't want to haveto leave there.
And as an added benefit,because she was qualified as
somebody who had a person withdisabilities, it meant that she
effectively got this nicequarter quiet quarter unit, for
(09:43):
I think it was $485 a month.
Basically, the person withdisabilities payment was paid in
that amount, and so she got tolive in this nice quiet quarter
unit and she didn't want to losethat, and so her argument was
that the mother's will ought tobe varied so that she doesn't
get the $1.8 million, butinstead it should go into what's
(10:04):
referred to as a Henson Trust.
What's a Henson Trust, youmight ask?
Well, a Henson Trust is a trust, so it's like money that's
being held for the benefit ofsomeone else, where the person
who's the trustee, the personresponsible for paying out the
money has complete discretionabout whether to pay out money
(10:27):
and, if so, how much.
And that model has beensomething which has been found
as a result of previous courtdecisions and indeed as a result
of a policy of the BC Ministryof Social Development and
Poverty Reduction, the ministrywho, in a guidebook, point out
that where there is that kind ofa trust set up for the benefit
of somebody who might have adisability and it's unclear what
(10:47):
the person's disability here,but something that prevents her
from working, so she gets thosegovernment benefits where that
sort of a trust is set up, themoney doesn't count in terms of
whether they are eligible forthe government disability
assistance, and so that'ssomething which is recognized by
the BC Ministry of SocialDevelopment and Poverty
(11:09):
Reduction.
And so the argument made herewas that the mother had made
inadequate provision for herdaughter in her will by failing
to set up one of those trusts sothat she wouldn't get the $1.8
million directly, and by havingthe money in a trust which would
be controlled by someone else,then that doesn't count towards
(11:32):
her assets or income, and indeedthe BC ministry takes that that
if that's how you're gettingmoney, it doesn't count.
So you might be a millionairein terms of the trust setup, but
you don't have the moneydirectly, and so you can keep
getting the governmentassistance.
And so that's the applicationthat was made.
(11:53):
The judge found, yes, that kindof a trust is possible.
Indeed, the mother could haveset up that kind of a trust, and
indeed the BC ministry fullyrecognizes that as an acceptable
planning option.
And so people can continue toget benefits, including
subsidized housing, if they havemoney in that form of a trust,
(12:15):
because they don't count that astheir asset.
However, the judge concludedthat, while that is something
that the mother could have done,that it doesn't get over the
starting point threshold for awill's variation application,
which is to say it's necessarythat the judge be satisfied that
the person had not made quoteadequate provision for the
(12:39):
proper maintenance and supportof the person who's receiving
money under the will.
And this was a lot of money andthere was no argument that it
was being like unfairly dividedup.
In fact, the two siblingsdidn't even took no objection to
any of this.
They didn't even bother showingup at the hearing about all of
this, because the sister wasn'tasking for more money.
(12:59):
Effectively, she was asking forless, or at least that she get
the same amount but given to herin a different way so that she
could maintain her governmentbenefits.
The judge found that the equaldivision of the money between
the three siblings did notamount to a failure to
adequately provide support forthe 63-year-old adult child,
(13:24):
taking into account social,legal and moral norms.
And even though there is adifferent structure which could
have been set up that might haveallowed a person to keep
getting government benefits, itwasn't a requirement to do that
and that doesn't provide a basisto modify the will so that that
result can take place, and sothe judge refused to do what was
(13:47):
being requested there.
Now I must say, of course, ifsomebody really really likes
their nice, quiet, cornerysubsidized housing unit and
doesn't want to have to losethat, nothing, lose that, that's
there.
Nothing requires you to keepthe money right.
I mean, if you really don'twant the $1.8 million, you're
quite free to give that away toa charity or do something else
(14:07):
with it.
But this maneuver won't bepermitted and I must say it may
be that there should be someconsideration given to.
You know how these things aredealt with by the ministry when
we have a shortage of housing,you know, do you want somebody
who's a beneficiary of a verylarge trust to be able to accept
(14:30):
a government subsidized housingunit.
Is that desirable?
Does that policy?
And you know, sometimes I thinkthese things would be set up if
somebody has, like a disabledchild, if they're concerned
about paying for things for them.
But it does raise that justreally interesting question of
what obligation does thegovernment have versus the
(14:52):
family's obligation?
And is it appropriate that youhave a policy in place that
allows somebody who could easilyafford to pay for very nice
housing and so on continue toquite properly receive
government subsidized housing bythis sort of a structure?
Is that something we want?
(15:14):
You know, no doubt this womanshe gave evidence that she
really liked the house or theapartment.
It was very quiet and she feltvery supported there, and you
know all of that.
And she gave some evidence thatother types of housing there
can be a long wait list for it.
That's no doubt true.
Right, yeah, there's a shortageof housing generally, that's
true.
But you know, is this what wewant?
(15:36):
Is that good public policy?
I guess right Now, in thisparticular case, we'll have to
wait and see.
But you know, maybe thereshould be some reflection given
to whether that is theappropriate policy for the BC
Ministry of Social Developmentand Poverty Reduction.
Do you necessarily want to besubsidizing somebody who is well
(15:58):
?
While I appreciate it's held ina trust, a millionaire?
Adam Stirling (16:01):
Yeah.
Michael Mulligan (16:02):
But that's our policy and that's why we have
this case.
Adam Stirling (16:06):
All right Up next it says an unsuccessful effort
to further appeal the issuanceof a 24-hour prohibition from
driving.
I note the further before thatappeal.
Michael Mulligan (16:17):
Indeed.
So this is a case out of OakBay from a few years ago and
it's a case involving a policeofficer that got a report from a
bus driver that there was avehicle that appeared to be
swerving on the road and so, notsurprisingly, the Oak Bay
police officer pulled the carover, instructed the driver to
(16:37):
move his vehicle forward, butthen the driver drove off.
There's been a slow speed chase, the vehicle stopped again.
The officer got the person outof the car and made a demand
they provide a breath sampleinto a roadside screening device
.
The person struggled to do it,but eventually with that also
had bouts of giggling for noapparent reason that also had
(16:57):
belts of giggling for noapparent reason, provided a
sample and the sample indicatedno alcohol.
Then the officer did somesobriety tests because of what
he thought was unusual behavioreven though there's no alcohol,
and concluded the person didn'tdo well on at least two of the
sobriety tests that he performedand so issued the person with a
24-hour driving prohibition.
And I should stop there for amoment just to mention how that
(17:20):
works.
That is to say that we haveprovisions in the Motor Vehicle
Act that allow a police officerto prohibit somebody from
driving for a period of 24 hoursand tow their car away if
they've got reasonable groundsto believe that the person's
ability to drive is impaired byalcohol or another drug.
(17:40):
Now there are a couple ofinteresting things about those
provisions, and I should sayfirst of all, they're intended
to be sort of a quick and dirtyroadside police response.
You know what I mean Sort ofokay, I'm not sure quite what's
going on here.
You're giggling and weaving,you know, stop driving.
Which seems, on the face of it,sort of reasonable.
But one of the challenges hereis that the appeal mechanisms
for these are not great, becausesometimes they may be given to
(18:04):
somebody who shouldn't have beengiven one of those things.
Now, in this particular case,the fellow who was given one
asserted that he had ADHD and hewas on the autism spectrum, and
that's why he was giggling inresponse to the breath request.
But I should point out thatthose provisions for a 24-hour
(18:25):
driving prohibition come in twoflavors.
One is a circumstance where theofficer believes somebody's
impaired by alcohol and onewhere the officer believes
somebody's impaired by someother drug.
Now, the alcohol one's a biteasier because often, or most,
police are going to be equippedwith these roadside screening
devices.
Right Again, somebody blow intoit to indicate whether there's
(18:46):
some screening of alcohol, andindeed the way this legislation
works is the police officer canissue one of these even for
alcohol, even when they don'thave or use one of those things,
which is interesting.
And it's also interesting thatthe legislation provides that if
a police officer does that likesays you know, I think you've
been drinking, and hands you a24-hour driving prohibition, you
(19:06):
in fact have the right todemand that you provide a breath
sample into a device, and ifthe police officer does that and
the device comes back and showsyou have a blood alcohol level
of less than 50 milligrams per100 milliliters of blood, the
driving prohibition isterminated.
One of the oddities, though, isthat they don't have to tell
you about that rate, and so mostpeople might not be aware of it
(19:29):
, and I guess you'd also have toconsider very carefully is that
a good idea?
Because if it comes back veryhigh, you might find that you're
facing more than a 24-hourdriving prohibition.
Also, when the officer hasconcluded that they think you
might be impaired by somethingnot alcohol, as in this case,
there is also a right to if thepolice officer doesn't perform
(19:49):
roadside tests, to demand thatthey do some roadside testing of
you, and if they don't do that,or if the officer thinks you've
passed the roadside test, thatcan also end the thing.
But, once again, you have to bevery careful about what you
want to be demanding, and I'mnot sure too many people are
demanding that because you don'thave to be told about it.
But, in any case, that's howthe sections work.
That's how the sections word it.
(20:10):
You have no other right ofappeal.
If you were, in fact, and theofficer either used a screening
device or did the testing, whichis usually the case, okay, so
in this particular case, theofficer did do the alcohol test.
It came back with zero, did dothe other tests for, you know,
(20:32):
roadside sobriety and concludedthat he thought the person was
impaired because of the weaving,the odd behavior, the giggling,
and so that was that.
Now, one of the other challengesis that, well, the 24-hour
prohibition might, on the faceof it, say well, so what?
A person's not driving for 24hours?
Why is that a big deal?
(20:53):
What happens to people, though,is like for example, if
somebody is like a new driver,the result of a 24-hour driving
prohibition will often be alonger driving prohibition.
The superintendent of motorvehicles look at it and say,
uh-oh, you look like a danger,and then prohibit the person
from driving for a few months.
So that's why there could beissues about it here.
The only mechanism to appeal itbeyond those things that I've
(21:13):
told you about those issueswhether they were done is by way
of a judicial review, likegoing to a Supreme Court judge.
This fellow tried that and lost,so he tried appealing it to the
BC Court of Appeal.
That's the latest part of it.
His problem was he didn't doanything for months.
He just let the thing drag onand on and then applied for an
extension of time to appeal itlater and ultimately the Court
(21:37):
of Appeal judge who was lookingat it just said no, there's just
no, it's not in the interest ofjustice to allow you even more
time to appeal this yet again,given that you just didn't move
this thing along in anexpeditious fashion and,
moreover, there doesn't appearto be very much merit to your
argument.
It's there's, maybe you havesome argument, but it's pretty
(21:57):
thin on that fact pattern, andso that's the latest.
In the Court of Appeal, thisfellow was told no, but I
thought to the extension of time, but I thought it was worth
mentioning, just so peopleunderstand what that 24-hour
prohibition is, the fact theyare very limited appeal
mechanisms and there is thisright to demand testing,
although it may not always bethe best idea and it's not
something the police have totell you about.
(22:18):
So that's the latest from theCourt of Appeal on 24-hour
driving prohibitions.
Adam Stirling (22:22):
Michael Mulgan, with Mulgan Defence Lawyers
during the second half of oursecond hour every Thursday,
legally speaking.
Thanks so much, thanks so much.
Always great to be here.
All right, bye now.
It's time for Legally Speaking, joined as
(00:01):
always by barrister andsolicitor with Mulligan Defence
Lawyers, michael Mulligan withLegally Speaking.
Morning Michael.
How are we doing, hey?
Good morning, I'm doing great,always good to be here Up first
on the agenda.
I'm reading.
It says speeding and who needsto provide what the signs said.
What does that mean?
Michael Mulligan (00:19):
Yeah, so there are different speeding offenses
under the Motor Vehicle Act.
In BC there are default speedlimits, for example, inside and
outside of municipalities.
Like, inside a municipality,the default speed limit would be
50, right.
But you know, somemunicipalities are having
various lower speed limit signsput up all over the place, and
(00:40):
so there's another offense underthe Motor Vehicle Act, which is
speeding contrary to highwaysigns.
And so one of the issues thatarose in a recent case is what
is the presumption about ahighway sign having been
properly put up right?
(01:01):
Because you know, let's say,you just make up your own speed
sign and go and stick it upoutside your house, but when
anyone's driving more than 15kilometers an hour, does that
become an offense to you?
You get a ticket.
What happens?
Interesting and that's.
It sounds a little ridiculous,but in fact there are signs
sometimes put up by otherentities, like, for example,
(01:22):
maybe you're driving in a school, on a school property, maybe
you're driving in a shoppingmall or something right.
There might be some sign stuckup there, but that wasn't a sign
erected by some municipalgovernment.
That might be just some signthat the landlord of this
whatever mall parking lotdecided to put up right, and so
(01:42):
there are some provisionsdealing with this.
This particular case involvedsigns for what may or may not
have been a construction zoneand the particular fact pattern
in this case.
It involved a highway wherethere had been some roadwork
done, but it looked like thatmay have been essentially
completed Sunday.
The evidence was that from thepolice officer that the zone was
(02:06):
ordinarily 100 kilometer anhour zone, but there were some
orange signs put up which had aspeed limit of 70 on them, like
to do with construction, and thepolice officer's evidence was
that the 100 kilometer signs hadplastic bags put over them.
Now, the other interestingelement and the other evidence
(02:26):
here was that there were noworkers present.
It was a Sunday, a beautifulday, and the signs which
indicated it was a constructionzone had been turned sideways to
indicate they weren't actuallydoing any construction, and the
hapless person who was chargedthis is another problem pulled
onto the highway where therewere no 70-kilometer-an-hour
signs, like between where thesigns were but, leaving that
(02:48):
issue aside and the fellow wasgoing, according to the radar
check, between 99 and 100, sowhat the speed limit was?
So the issue was well, what isthe speed limit there?
He got a ticket for drivingcontrary to these highway signs.
And the starting point is thisPeople may not know about this
there's a section in the MotorVehicle Act, section 201, that
(03:10):
provides that the fact thatthere is a sign up is evidence
that the sign was duly erected.
Okay, so in an ordinary way,let's say there's what looks
like a speed sign that says 15kilometers an hour right outside
your house.
Well, that is evidence thatthere was a duly erected sign
put up there.
But the question that had to besorted out in this case is well
(03:33):
, what happens when there issome challenge made as to
whether that sign is properlythere?
Right, and in this case thejudge pointed out, or judicial
justice pointed out there areprovisions that both require
their signs to be put up whenthere's construction, saying
there's construction going onthose ones return sideways, and
it's also a requirement toremove temporary signs when
(03:55):
there's no longer any reason tohave them up.
And so what do you do when this, in this case, they seem to be
clear evidence.
Yeah, there were signs.
Usually it's 100.
The work signs were turnedsideways and no one's working.
What do you make of that sortof presumption, or the
presumption of regularity theywould call it?
Like if there's a sign there,we start from the presumption
that it's a properly put up sign.
(04:16):
Well, the judicial justiceanalyzed it from this
perspective.
He said, okay, well, yes, thatis some evidence that was
properly put up, but it's notconclusive evidence.
And so they then went throughwhat kind of evidence to the
contrary has to be establishedto establish that it's not a
proper sign?
It's one that, you know, adammade up and put in front of his
(04:38):
house, or one that might havebeen put up by the shopping mall
, or some sign that was left upwhen it shouldn't have been.
Well, it's not even arequirement to prove it beyond a
reasonable doubt, and even abalance of probabilities is too
much.
And so what the judicialjustice pointed out, referring
to a Supreme Court of Canadacase, is that once there's
evidence that raises what isreferred to as an air of reality
(05:01):
, to the idea that that signmight not properly be there,
like it looked, like it was madein crayon or it was smaller
than all the other signs, orwhatever right something that
would call into question.
Is that real?
Should that be there?
Did they just leave it up bymistake?
What's going on?
Once there's something that getsover that reasonably low
threshold of air of reality,then the onus then shifts to the
(05:23):
crown to prove beyond areasonable doubt that the sign
was properly erected right.
Was there a legislative basisto put that thing up?
Uh, and here, uh, that didn'texist, and so certainly that the
judicial justice found that,given that the work signs return
sideways, there were no workerson the highway and there is a
(05:44):
requirement to take down signswhen there's not work going on,
and that didn't happen here.
Now, I should say there's alsothis obligation to put up signs
when there is new construction,widening of a road, repair,
marking or other work is beingcarried out.
So I guess there'd be someissue about what or other work
is being carried out.
So I guess there'd be someissue about what does it mean by
is being carried out.
(06:05):
Does that mean right now?
Maybe on Monday we'll do that,but certainly, given the
ambiguity of what was going on,and there were also pictures of
what was going on and the policeofficer agreed yeah, it's
usually 100, and there's thesebags on them and other signs
return sideways.
Once you get to that justrelatively low threshold of
error reality about whetherthese things are properly there,
(06:26):
then the burden's on the Crown,and if they don't lead evidence
to prove beyond a reasonabledoubt there's proper legal
authority to put these things up, the signs, then the result is
there's not enough evidence andyou're found not guilty, and
that's what happened here.
And so it's just important toknow how that structure works.
If somebody finds themselves intraffic court and it's
(06:47):
ambiguous as to whether the signwas real or not, or should have
been there or not, as soon asthere's an air of reality to
that question, crown's got toprove it.
It's not enough to just say,yeah, there's a sign that said
15 kilometers, right out infront of Adam's house.
That's not going to do it, andso that's the latest from the
provincial court on speeding andsigns.
Adam Stirling (07:07):
Michael Mulligan with Mulligan Defence Lawyers,
legally speaking.
We'll continue right after thiscommercial break.
All right, we're back on theair here at CFAX 1070 as we
continue with Michael Mulligan,with Mulligan Defence Lawyers,
legally speaking.
Up next on our agenda can awill, it says here, be varied to
put money in a trust so thebeneficiary can keep government
benefits?
Michael Mulligan (07:27):
michael indeed and we've spoken before about
applications under the wills,estates and succession act,
often referred to the provisionsas wills, variation
applications and the provisionsof that act allow somebody to
make an application if they'rethe spouse or child of somebody
(07:48):
who made a will, arguing thatthey did not make quote adequate
provision for the propermaintenance and support of
either a spouse or childrenunder the will.
Now it's quite interesting thatthe section requires a judge to
determine whether the will, interms of support left, was, in
(08:09):
light of current societal, legaland moral norms, whether the
amount of support left wasadequate.
So there's really pretty broadauthority if somebody tries to
cut a child or spouse out of awill or whatever.
Now, this particular case isinteresting because it was
actually the reverse argument.
It was somebody effectivelyarguing I can't get all this
money, I'll lose my benefits,and so it was an application by
(08:33):
a 63-year-old adult child andthe substantial estate.
The mother who passed away hadan estate which pretty
uncontroversially, left smallbequeaths to her two
grandchildren and then equallydivided the estate amongst the
three children, and each ofthose beneficiaries would wind
up with something north of $1.8million, so not an insubstantial
(08:57):
amount of money.
And so why would somebody notwant to get $1.8 million?
Well, this particular person wasthe beneficiary of various
social benefits, includingsubsidized social housing, and
to that end, she had a placethat she sounds like very much
liked over in Vancouver in asubsidized facility, and
(09:22):
described where she was livingas a quarter unit, and it was a
quiet location and a quiet partof Vancouver and she really
liked it and didn't want to haveto leave there.
And as an added benefit,because she was qualified as
somebody who had a person withdisabilities, it meant that she
effectively got this nicequarter quiet quarter unit, for
(09:43):
I think it was $485 a month.
Basically, the person withdisabilities payment was paid in
that amount, and so she got tolive in this nice quiet quarter
unit and she didn't want to losethat, and so her argument was
that the mother's will ought tobe varied so that she doesn't
get the $1.8 million, butinstead it should go into what's
(10:04):
referred to as a Henson Trust.
What's a Henson Trust, youmight ask?
Well, a Henson Trust is a trust, so it's like money that's
being held for the benefit ofsomeone else, where the person
who's the trustee, the personresponsible for paying out the
money has complete discretionabout whether to pay out money
(10:27):
and, if so, how much.
And that model has beensomething which has been found
as a result of previous courtdecisions and indeed as a result
of a policy of the BC Ministryof Social Development and
Poverty Reduction, the ministrywho, in a guidebook, point out
that where there is that kind ofa trust set up for the benefit
of somebody who might have adisability and it's unclear what
(10:47):
the person's disability here,but something that prevents her
from working, so she gets thosegovernment benefits where that
sort of a trust is set up, themoney doesn't count in terms of
whether they are eligible forthe government disability
assistance, and so that'ssomething which is recognized by
the BC Ministry of SocialDevelopment and Poverty
(11:09):
Reduction.
And so the argument made herewas that the mother had made
inadequate provision for herdaughter in her will by failing
to set up one of those trusts sothat she wouldn't get the $1.8
million directly, and by havingthe money in a trust which would
be controlled by someone else,then that doesn't count towards
(11:32):
her assets or income, and indeedthe BC ministry takes that that
if that's how you're gettingmoney, it doesn't count.
So you might be a millionairein terms of the trust setup, but
you don't have the moneydirectly, and so you can keep
getting the governmentassistance.
And so that's the applicationthat was made.
(11:53):
The judge found, yes, that kindof a trust is possible.
Indeed, the mother could haveset up that kind of a trust, and
indeed the BC ministry fullyrecognizes that as an acceptable
planning option.
And so people can continue toget benefits, including
subsidized housing, if they havemoney in that form of a trust,
(12:15):
because they don't count that astheir asset.
However, the judge concludedthat, while that is something
that the mother could have done,that it doesn't get over the
starting point threshold for awill's variation application,
which is to say it's necessarythat the judge be satisfied that
the person had not made quoteadequate provision for the
(12:39):
proper maintenance and supportof the person who's receiving
money under the will.
And this was a lot of money andthere was no argument that it
was being like unfairly dividedup.
In fact, the two siblingsdidn't even took no objection to
any of this.
They didn't even bother showingup at the hearing about all of
this, because the sister wasn'tasking for more money.
(12:59):
Effectively, she was asking forless, or at least that she get
the same amount but given to herin a different way so that she
could maintain her governmentbenefits.
The judge found that the equaldivision of the money between
the three siblings did notamount to a failure to
adequately provide support forthe 63-year-old adult child,
(13:24):
taking into account social,legal and moral norms.
And even though there is adifferent structure which could
have been set up that might haveallowed a person to keep
getting government benefits, itwasn't a requirement to do that
and that doesn't provide a basisto modify the will so that that
result can take place, and sothe judge refused to do what was
(13:47):
being requested there.
Now I must say, of course, ifsomebody really really likes
their nice, quiet, cornerysubsidized housing unit and
doesn't want to have to losethat, nothing, lose that, that's
there.
Nothing requires you to keepthe money right.
I mean, if you really don'twant the $1.8 million, you're
quite free to give that away toa charity or do something else
(14:07):
with it.
But this maneuver won't bepermitted and I must say it may
be that there should be someconsideration given to.
You know how these things aredealt with by the ministry when
we have a shortage of housing,you know, do you want somebody
who's a beneficiary of a verylarge trust to be able to accept
(14:30):
a government subsidized housingunit.
Is that desirable?
Does that policy?
And you know, sometimes I thinkthese things would be set up if
somebody has, like a disabledchild, if they're concerned
about paying for things for them.
But it does raise that justreally interesting question of
what obligation does thegovernment have versus the
(14:52):
family's obligation?
And is it appropriate that youhave a policy in place that
allows somebody who could easilyafford to pay for very nice
housing and so on continue toquite properly receive
government subsidized housing bythis sort of a structure?
Is that something we want?
(15:14):
You know, no doubt this womanshe gave evidence that she
really liked the house or theapartment.
It was very quiet and she feltvery supported there, and you
know all of that.
And she gave some evidence thatother types of housing there
can be a long wait list for it.
That's no doubt true.
Right, yeah, there's a shortageof housing generally, that's
true.
But you know, is this what wewant?
(15:36):
Is that good public policy?
I guess right Now, in thisparticular case, we'll have to
wait and see.
But you know, maybe thereshould be some reflection given
to whether that is theappropriate policy for the BC
Ministry of Social Developmentand Poverty Reduction.
Do you necessarily want to besubsidizing somebody who is well
(15:58):
?
While I appreciate it's held ina trust, a millionaire?
Adam Stirling (16:01):
Yeah.
Michael Mulligan (16:02):
But that's our policy and that's why we have
this case.
Adam Stirling (16:06):
All right Up next it says an unsuccessful effort
to further appeal the issuanceof a 24-hour prohibition from
driving.
I note the further before thatappeal.
Michael Mulligan (16:17):
Indeed.
So this is a case out of OakBay from a few years ago and
it's a case involving a policeofficer that got a report from a
bus driver that there was avehicle that appeared to be
swerving on the road and so, notsurprisingly, the Oak Bay
police officer pulled the carover, instructed the driver to
(16:37):
move his vehicle forward, butthen the driver drove off.
There's been a slow speed chase, the vehicle stopped again.
The officer got the person outof the car and made a demand
they provide a breath sampleinto a roadside screening device
.
The person struggled to do it,but eventually with that also
had bouts of giggling for noapparent reason that also had
(16:57):
belts of giggling for noapparent reason, provided a
sample and the sample indicatedno alcohol.
Then the officer did somesobriety tests because of what
he thought was unusual behavioreven though there's no alcohol,
and concluded the person didn'tdo well on at least two of the
sobriety tests that he performedand so issued the person with a
24-hour driving prohibition.
And I should stop there for amoment just to mention how that
(17:20):
works.
That is to say that we haveprovisions in the Motor Vehicle
Act that allow a police officerto prohibit somebody from
driving for a period of 24 hoursand tow their car away if
they've got reasonable groundsto believe that the person's
ability to drive is impaired byalcohol or another drug.
(17:40):
Now there are a couple ofinteresting things about those
provisions, and I should sayfirst of all, they're intended
to be sort of a quick and dirtyroadside police response.
You know what I mean Sort ofokay, I'm not sure quite what's
going on here.
You're giggling and weaving,you know, stop driving.
Which seems, on the face of it,sort of reasonable.
But one of the challenges hereis that the appeal mechanisms
for these are not great, becausesometimes they may be given to
(18:04):
somebody who shouldn't have beengiven one of those things.
Now, in this particular case,the fellow who was given one
asserted that he had ADHD and hewas on the autism spectrum, and
that's why he was giggling inresponse to the breath request.
But I should point out thatthose provisions for a 24-hour
(18:25):
driving prohibition come in twoflavors.
One is a circumstance where theofficer believes somebody's
impaired by alcohol and onewhere the officer believes
somebody's impaired by someother drug.
Now, the alcohol one's a biteasier because often, or most,
police are going to be equippedwith these roadside screening
devices.
Right Again, somebody blow intoit to indicate whether there's
(18:46):
some screening of alcohol, andindeed the way this legislation
works is the police officer canissue one of these even for
alcohol, even when they don'thave or use one of those things,
which is interesting.
And it's also interesting thatthe legislation provides that if
a police officer does that likesays you know, I think you've
been drinking, and hands you a24-hour driving prohibition, you
(19:06):
in fact have the right todemand that you provide a breath
sample into a device, and ifthe police officer does that and
the device comes back and showsyou have a blood alcohol level
of less than 50 milligrams per100 milliliters of blood, the
driving prohibition isterminated.
One of the oddities, though, isthat they don't have to tell
you about that rate, and so mostpeople might not be aware of it
(19:29):
, and I guess you'd also have toconsider very carefully is that
a good idea?
Because if it comes back veryhigh, you might find that you're
facing more than a 24-hourdriving prohibition.
Also, when the officer hasconcluded that they think you
might be impaired by somethingnot alcohol, as in this case,
there is also a right to if thepolice officer doesn't perform
(19:49):
roadside tests, to demand thatthey do some roadside testing of
you, and if they don't do that,or if the officer thinks you've
passed the roadside test, thatcan also end the thing.
But, once again, you have to bevery careful about what you
want to be demanding, and I'mnot sure too many people are
demanding that because you don'thave to be told about it.
But, in any case, that's howthe sections work.
That's how the sections word it.
(20:10):
You have no other right ofappeal.
If you were, in fact, and theofficer either used a screening
device or did the testing, whichis usually the case, okay, so
in this particular case, theofficer did do the alcohol test.
It came back with zero, did dothe other tests for, you know,
(20:32):
roadside sobriety and concludedthat he thought the person was
impaired because of the weaving,the odd behavior, the giggling,
and so that was that.
Now, one of the other challengesis that, well, the 24-hour
prohibition might, on the faceof it, say well, so what?
A person's not driving for 24hours?
Why is that a big deal?
(20:53):
What happens to people, though,is like for example, if
somebody is like a new driver,the result of a 24-hour driving
prohibition will often be alonger driving prohibition.
The superintendent of motorvehicles look at it and say,
uh-oh, you look like a danger,and then prohibit the person
from driving for a few months.
So that's why there could beissues about it here.
The only mechanism to appeal itbeyond those things that I've
(21:13):
told you about those issueswhether they were done is by way
of a judicial review, likegoing to a Supreme Court judge.
This fellow tried that and lost,so he tried appealing it to the
BC Court of Appeal.
That's the latest part of it.
His problem was he didn't doanything for months.
He just let the thing drag onand on and then applied for an
extension of time to appeal itlater and ultimately the Court
(21:37):
of Appeal judge who was lookingat it just said no, there's just
no, it's not in the interest ofjustice to allow you even more
time to appeal this yet again,given that you just didn't move
this thing along in anexpeditious fashion and,
moreover, there doesn't appearto be very much merit to your
argument.
It's there's, maybe you havesome argument, but it's pretty
(21:57):
thin on that fact pattern, andso that's the latest.
In the Court of Appeal, thisfellow was told no, but I
thought to the extension of time, but I thought it was worth
mentioning, just so peopleunderstand what that 24-hour
prohibition is, the fact theyare very limited appeal
mechanisms and there is thisright to demand testing,
although it may not always bethe best idea and it's not
something the police have totell you about.
(22:18):
So that's the latest from theCourt of Appeal on 24-hour
driving prohibitions.
Adam Stirling (22:22):
Michael Mulgan, with Mulgan Defence Lawyers
during the second half of oursecond hour every Thursday,
legally speaking.
Thanks so much, thanks so much.
Always great to be here.
All right, bye now.
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