May 2, 2025 • 21 mins
Navigating mental health crises poses profound challenges for families watching loved ones deteriorate without effective intervention options. This episode sheds light on a powerful yet underutilized legal tool - Section 28 of BC's Mental Health Act, which allows family members and concerned individuals to apply directly for a "warrant of apprehension" when someone exhibits dangerous mental health symptoms.
A recent Colwood court judgment outlines exactly how this process works, revealing that applications have increased significantly recently. The warrant enables initial 48-hour detention for proper assessment when someone displays behaviour indicating they may harm themselves or others. We dissect the legal criteria judges consider: reasonable belief in mental disorder, need for treatment, purpose of protection, and inability to proceed voluntarily. This mechanism empowers families who previously felt helpless, though its effectiveness ultimately depends on available treatment facilities and mental health resources.
We also examine two significant Court of Appeal decisions with far-reaching implications. First, a dangerous offender designation was upheld for an individual with decades of sexual offending against young boys, illustrating how the justice system handles those deemed to present an unmanageable risk to society. Second, a class action lawsuit against WestJet regarding passengers with disabilities who require multiple seats can proceed despite jurisdictional questions between federal transportation regulations and provincial discrimination laws. This fascinating exploration of "paramountcy" shows how courts attempt to harmonize seemingly conflicting legislation rather than automatically favouring federal authority. Have you encountered situations where knowledge of these legal mechanisms might have helped someone you know? We'd appreciate hearing your experiences.
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 Legally Speaking joined by Michael
Mulligan, Barrister andSolicitor, with Mulligan Defence
Lawyers.
Afternoon Michael Pleasure, asalways.
Michael Mulligan (00:07):
Hey, good afternoon.
How are you doing?
Adam Stirling (00:09):
I'm doing well.
I'm glad I could hear you there.
I'm still sort of off-put whenI bring you on the line.
It used to bring this littleslight sound and I don't have
that in our new system, so I'mglad you're with us today.
Michael Mulligan (00:20):
We're just getting over the lack of the
downtown crackle.
Adam Stirling (00:23):
We are, we are.
Maybe that was downtown, maybeit was just something in the air
.
There are actually a number ofvery interesting issues on our
agenda to discuss this week.
I know one that I'm sure you'vebeen overhearing the
conversations we've been having,of course, after the horrific
incident that took place overthe weekend.
There is a story I'm reading,number one here.
It's how a family member oranyone else can apply for what's
(00:49):
known as a warrant ofapprehension pursuant to the
Mental Health Act.
Michael Mulligan (00:50):
Walk us through that?
I certainly will, and I justwant to make a couple of
preliminary comments about arelated issue.
We just heard a discussion inthe House about comments from
Premier Eby about his views ofthe case arising out of the Lupa
Lupa festival.
Adam Stirling (01:09):
Yes.
Michael Mulligan (01:10):
And there's discussion about sort of Premier
expressing his view about whatshould happen in the outcome.
Premier Eby should be verycareful about what he's doing if
he wishes that case to proceedproperly to trial, and the
reason for that it's aconstitutional one.
The idea of not havingpolitical interference and
(01:31):
public comments from Premier orothers about the outcome of a
criminal case is not simply agood idea and it is a good idea
not to be publicly commenting onwhat you wish the outcome of
the case to be when you're thePremier.
But we also have in Canada aconstitutional protection and in
particular Section 11D of theCharter, and that section is
(01:53):
this Proceedings in a criminaland penal matter is the heading.
A person is presumed innocentuntil proven guilty according to
law in a fair and publichearing by an independent and
impartial tribunal.
Now, one of the things wrappedup in that in terms of kind of
comments made by the premier isthat if you have the sort of
interference with the prospectof a fair trial because the case
(02:17):
presumably would be a jurytrial at the end of the day and
if you have the premier orattorney general or other
officials of that sortexpressing publicly and
repeatedly their comments aboutthe person's guilt or what the
outcome should be, you run therisk of preventing the sort of
fair and independent andimpartial hearing that is
(02:39):
required, and in the mostserious of cases, the result of
that could be there won't be atrial.
Right A judge isn't going topermit there to be a trial,
which is unfair.
And if you have the premier,for political reasons,
expressing views about theproper outcome of the case and
what ought to happen, the riskis you interfere with that and
you prevent the very thing thatyou want to happen.
(03:01):
And so I would urge Mr Eby toget some careful legal advice
before he continues to commentpublicly about what he thinks
the outcome of that case shouldbe, because he is, I think,
getting wading into verydangerous territory repeatedly
and publicly expressing hisopinion about what ought to
(03:21):
happen and what the resultshould be, which is not going to
be covered up by sort ofsophistry here and so on.
Eventually, you're going tohave, potentially, a judge
determining whether thatconstitutional right has been
breached, which could interferewith the prosecution.
So he should be very carefulabout what he's doing, because
it's not appropriate to have thepremier expressing his opinion
(03:42):
about the outcome of an ongoingserious criminal case.
The way he's doing, he runs therisk of preventing that from
happening, so that would be mypreliminary advice to him.
Interesting.
Now getting to the case thatwe're talking about here, this
is a really interesting decisionand it relates both to that
(04:03):
tragic incident potentially andgenerally in terms of how the
mental health system operates inBC.
There's been some talk aboutwhether there ought to be
changes to that system orimprovements made to the
legislation.
But the Mental Health Act has aprovision in it that is rarely
used and I think it is veryimportant that people be aware
(04:26):
of it.
And there was a brand newdecision from Colwood here.
The judgment was on April the11th, and it's a detailed
discussion about the use of theprovision in the existing Mental
Health Act under Section 28that permits a family member or,
(04:47):
frankly, anyone, to apply for awarrant of apprehension in
order to have somebodyapprehended under the Mental
Health Act and held for a periodof, initially, 48 hours to
determine whether there shouldbe further involuntary treatment
provided to them.
And the reason this isinteresting and important and
(05:09):
people should know about it isit's a separate thing from the
powers that the police haveright To apprehend somebody
under the act.
This is a section which, forexample, a concerned family
member could use, right If theythought that that was necessary,
or somebody else in thecommunity, and so the process
(05:30):
essentially involves making anapplication to a provincial
court judge for this kind of awarrant, that warrant of
apprehension, and the provincialcourt judge where there is that
kind of an application hasvarious things they need to
consider when determiningwhether to issue the warrant.
(05:50):
And the judge in this casecommented that while these in
the past these kinds ofapplications have been rare,
that the judge hearing thisapplication has heard six of
them since the fall of 2024.
Has heard six of them since thefall of 2024.
And so there's some indicationthat people may be getting the
message.
There is an alternative here Ifsomebody has, like a family
(06:10):
member, a child or somebody elsewho's struggling with mental
health challenges and they'renot getting any assistance with
it.
So the first part of the judgeneeds to be satisfied of and
this is an interesting thinggiven the nature of the
application they first of allneed to be satisfied that the
person to whom the warrant ofapprehension is sought is a
(06:31):
person with a mental disorder.
Now, the reason that's a littlecomplicated, of course, is the
judge isn't a doctor, right?
Adam Stirling (06:38):
No.
Michael Mulligan (06:38):
And typically these applications are made ex
parte, the person's not thereright.
Yeah, are made ex parte.
The person's not there, right.
And so the judge in this casepointed out that there isn't
going to be, in some cases, adiagnosis this particular
decision that occurred on Aprilthe 11th.
The only thing this person hadbeen diagnosed with, I think,
was attention deficit disorder,which is not something you're
(06:59):
going to wind up voluntarily inthe mental health system for.
But, as the judge pointed out,the issue to be determined is
not a diagnosis.
It doesn't require the judge todetermine if there is a mental
illness there.
They need to determine whetherthere is a reasonable basis to
(07:19):
believe that so and so in thisparticular case, it involved a
person who seemed to bedeteriorating and was doing
various unusual things.
She believed that she hadgotten into a telepathic
relationship with somebody onTikTok.
She believed that PrimeMinister Trudeau had murdered
(07:39):
her non-existent brother.
She'd stopped eating andsleeping regularly.
She thought her grandmother wastrying to poison her with
laundry detergent, and then shewas doing other odd things, like
she ran out of the house and,with her child, wound up
sleeping in the subzerotemperature next to a neighbor's
driveway, and then, when theambulance was called to show up
(08:00):
there to do a check on her, shefled barefoot in the snow,
without a jacket.
Show up there and do a check onher.
She fled barefoot in the snowwithout a jacket, right.
And so on that fact pattern, thejudge didn't need to make a you
know diagnosis of does thisperson have a mental illness and
what is the mental illness?
That it is enough that thejudge was satisfied on that
basis that the person likely hada reasonable basis to believe
(08:24):
the person had a mental illnessthat would seriously impair
their ability to reactappropriately to the environment
, associate with others and soon.
And so that's the way that wasanalyzed.
That's the first criteria.
Then the judge has to besatisfied that they require
treatment through like a mentalhealth facility, right.
So on that fact pattern, yes,the person seems to require
(08:46):
treatment.
And then the next criteria.
The third one is do theyrequire care or supervision for
one of four possible purposes?
So the first is to prevent theperson's substantial mental
deterioration.
Right To prevent a person'ssubstantial physical
deterioration or these twoperson substantial physical
(09:08):
deterioration or these two forthe purpose of protecting the
person or for protecting others,right.
And so in this case the judgewas concluding that there's an
evidentiary basis there toensure that you know, for
example, the person's child isprotected, that they're
protected, right, they'rerunning around outside without
shoes, on in the snow, sleepingoutside.
That's obviously not wise, andso the judge had no problem
(09:28):
being satisfied of that.
There also needs to be anassessment about whether the
person cannot be suitablyassessed as a voluntary patient,
right, if somebody's saying,hey, I'm going to the hospital
now to get help, well, theydon't need a warrant for them.
But, like in this case, theperson was running away from the
attendants trying to assessthem.
Okay, that doesn't seem to beso.
And then whether this can bedone without unreasonable delay.
(09:55):
And so the judge went throughall of that and concluded that,
indeed, it met that criteria fora warrant of this sort under
Section 28.
And the result will be there'llbe a warrant for their arrest,
and they would be then takeninto custody and taken to a
facility where they can beproperly diagnosed to determine
whether they need to becommitted for involuntary
(10:18):
treatment.
And so this is something thatpeople should know about.
It's something that they caninitiate on their own.
It would be helpful to have thehelp of a lawyer doing it, but
it may be pretty important,right?
You can imagine if, for example, you were a parent watching
your child.
You know display actions likewas described in this case.
(10:40):
It provides an outlet so thatpeople would be able to take
some control of that, go tocourt and have a decision made
and then potentially do anassessment and get help.
Now I should say it's importantto know about.
It exists right now, it can beused right now, but all of these
(11:02):
things, of course, are alldependent on there in fact being
a place for there to be actualtreatment beyond some initial
assessment.
Right, and if you have acircumstance where there's just
nowhere for the person to go andthey're just released back into
the community with the hopesthat, you know, somehow people
will check on them or dosomething, that may not solve
all problems.
So really at the core of all ofthis is the need to have
(11:24):
facilities where actualtreatment can occur.
Right Orders and warrants andchanging the law and amending
the act and all of that reallyhave no particular impact unless
there's a meaningful place andresources for people to actually
get assistance.
And so you know, I don't thinkwe do need too much in terms of
(11:44):
inquiry or consideration torealize that if you want to
provide help for people withmental health challenges, you
need to have resources to do it.
It's not really in most cases, alegal problem, right?
But you know this demonstrateswe have right now tools that
allow for this sort ofintervention.
(12:05):
It's a good tool, but you know,the tool gets you legal tool
gets you nowhere unless there'sactually a bed and a doctor and
a nurse and various people tohelp.
And so, anyways, it's a veryinteresting case.
It sets out in detail whatneeds to happen, the various
steps and what a judge needs toconsider, and it looks like at
least some people arediscovering that this is an
(12:28):
available option.
So I hope listeners keep thatin mind and let other friends
and family know that there is ascheme in place that they can
avail themselves of.
If they have a family member orfriend or somebody who appears
to be suffering from mentalillness and is deteriorating, is
at risk to themselves or others, there's something they can do
about it.
This is it, and from there it'sjust a matter of whether there
(12:50):
will be sufficient publicresources to provide whatever
help is diagnosed by the doctors.
Adam Stirling (12:57):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking, will continueright after this.
We're back on the air here atCFAX 1070, legally Speaking with
Michael Mulligan from MulliganDefense Lawyers.
Michael up next it says adangerous offender designation
upheld on appeal for acharacterization that I don't
even think I've ever said outloud before.
What's happening here.
Michael Mulligan (13:18):
So maybe we'll start with that, because it is
a term people may be unfamiliarwith.
And so it is a fellow who isdescribed by the trial judge as
an entrenched, prolifichomosexual hebephile.
And a hebephile is distinctfrom a pedophile in the sense
that they have a sexualattraction to children between
(13:41):
the ages of like 11 and 14,early adolescence, and so you
can tell from that description.
It is astoundingly grim, andthe case involved a appeal to
the court of appeal about adesignation of this person as a
dangerous offender, and we'vetalked about that in passing
(14:01):
before, the concept of somebodywho is designated as a dangerous
offender, which is somethingthat can happen when you have a
determination.
Ultimately that there I mean,as the judge said, in this case
there was no reasonablepossibility that the appellant
would make sufficient progresswithin a fixed sentence to take
advantage of supervisionmechanisms to provide for his
(14:21):
release in order to control hisrisk in the community.
And so what do you do withsomebody who has demonstrated
themselves to be justincorrigible, essentially in
terms of their criminal conduct,and that kind of a danger,
essentially in terms of theircriminal conduct and that kind
of a danger?
And this fellow was describedas somebody who had this long
(14:48):
pattern of sexual offending.
It started in 1978.
He was convicted on a total ofsexually assaulting nine young
boys between the ages of 12 and16.
And he was described initiallyin his offending as starting out
with using force and fear andthen became eventually later
offending more sophisticated,progressed to targeting
vulnerable boys, lure them intospending time grooming them and
(15:12):
providing drugs and so forth tothem, and that's what occurred
through the predicate offensethat led to the application for
this dangerous offenderdesignation them.
And that's what occurred in thesort of the predicate offense
that led to the application forthis dangerous offender
designation.
This man had, in violation of arecognizance that prohibited him
from having contact withchildren and having served, not
(15:35):
long before this, a 10-yearprison sentence for similar
conduct, engaged in thisgrooming behavior with another
young boy, lied to others,telling, for example, the
complainant's father that he wasan outreach worker, and then
used that as a mechanism for hisoffending.
And so, given all of thatbackground, the trial judge and
(15:57):
ultimately the Court of Appeal,paid attention to, for example,
opinion from a psychiatrist,which is one of the monitoring
that this fellow would beunmanageable, essentially in
(16:24):
terms of his risk in thecommunity.
And given that determination,the judge rejected what was a
defense submission on sentencing.
The defense suggested a periodof 16 years in prison, such that
he would be 78 years of agewhen he was released.
Years in prison such that hewould be 78 years of age when he
was released.
The judge found that even that,combined with a maximum 10
(16:45):
years of intensive supervision,would be insufficient to protect
the public, despite the factthat there was expert evidence
that the dangerousness ofsomebody like this diminishes
with age.
And so, given all of that, bothat the original sentencing and
(17:07):
now in the appeal decision thatwas just released, the
determination was that this manwas properly designated as a
dangerous offender, and whensomebody is designated in that
way, what they wind up with is asentence basically forever, and
the person is not to bereleased unless the parole board
(17:27):
was to determine that he didn'tpose a risk to the community.
And, given this background, thelikely answer to that is that
will never occur, and so it iscertainly a very grim case, but
I thought it was worthmentioning, in terms of both
that diagnosis and also just adescription of you know what it
(17:48):
is we do and on what basis, whenyou've got somebody who is just
incurably dangerous, and thesystemic response to that is to
impose a sentence whereby theperson will never be released,
even if the sentence for theparticular offense, while
serious, might not havewarranted you know, 16 years
(18:09):
might have been an appropriatesentence for the particular
crime.
When you have somebody like this, where there's just
determination made that there'sno basis to believe that after
any period of time the publiccould be safe and there wouldn't
be other serious offending ofthis sort, this is the result
(18:30):
and that's how the justicesystem deals with it.
So, yes, people should be awareof that.
When you do have people of thissort and happily they're rare
the systemic response is that wejust don't let them out.
And so that's the latest fromthe Court of Appeal on the
dangerous offender review.
Adam Stirling (18:45):
You and I have one minute 45 seconds remaining.
Michael Mulligan (18:49):
Okay, final case.
It's a case which is an appealto the Court of Appeal over the
certification of a class actionagainst WestJet, and it involves
an interesting issue of federalparamountcy.
And what's going on here isthat the claim is being brought
by people with disabilities thatrequire more than one seat to
(19:12):
fly on an airplane, likesomebody who has a particular
type of wheelchair or something.
They need more space.
And there was a decision made afew years ago, in 2008, by the
Canada Transportation Agencythat said for domestic flights,
airlines are only permitted tocharge a fee per passenger, not
per seat.
But that decision by theTransportation Agency federal in
(19:34):
Canada only applied to domesticflights, not international ones
, does only apply to domesticflights, not international ones,
and so WestJet at least chargesif a person needs two seats,
they have to pay for two seats,right?
And the claim is being broughtin part on alleged breach of
provincial legislation, and oneof the arguments made by WestJet
(20:01):
is that, well, hold on a minute.
You know airline regulation,including international travel,
is something handled by thefederal government under the
Canada Transportation Agency, sothe BC Supreme Court and
provincial legislation shouldhave nothing to do with that.
And they referred to thatinteresting concept of the
concept of paramountcy.
And in Canada, of course, wehave a federal system.
We've got laws that are federaland provincial.
(20:23):
And what do you do whensometimes things have sort of a
dual aspect to it?
Like you might have generallaws in BC about disability
discrimination, but you've gotfederally laws surrounding
airplanes flying right, and sothe argument is well, the
provincial stuff should havenothing to do with it.
This should be just dealt withunder that federal legislation.
(20:44):
What the Court of Appeal pointedout is that that concept of
paramountcy it's real, it exists, and where there is a conflict
between federal and provinciallegislation, the federal
legislation wins right.
But when you're applying itthere should be an attempt to
harmoniously interpret the twodifferent pieces of legislation
in a way that doesn't make themincompatible.
And it's a high burden to showthat the federal legislation
(21:07):
would be sort of made inoperableby what the province has done.
And so, even though that is aconcept, it does exist and the
federal legislation takesparamount see when they can't be
reconciled.
The conclusion was it's notclear and obvious that you
cannot reconcile the federallegislation with provincial
legislation dealing with thingslike discrimination and
disabilities.
So the net result even thoughparamountcy exists, it doesn't
(21:30):
prevent the claim here, and theclaim by people that need two
seats because they're in awheelchair for international
flights will be allowed tocontinue.
That's the latest from theCourt of Appeal.
Adam Stirling (21:39):
Michael Mulligan, with Mulligan Defense Lawyers,
Legally speaking during thesecond half of our second hour
every Thursday.
Thank you so much.
Pleasure as always.
Michael Mulligan (21:46):
Thanks so much .
Always great to be here.
Adam Stirling (21:47):
All right, quick break News is next.
It's Legally Speaking joined by Michael
Mulligan, Barrister andSolicitor, with Mulligan Defence
Lawyers.
Afternoon Michael Pleasure, asalways.
Michael Mulligan (00:07):
Hey, good afternoon.
How are you doing?
Adam Stirling (00:09):
I'm doing well.
I'm glad I could hear you there.
I'm still sort of off-put whenI bring you on the line.
It used to bring this littleslight sound and I don't have
that in our new system, so I'mglad you're with us today.
Michael Mulligan (00:20):
We're just getting over the lack of the
downtown crackle.
Adam Stirling (00:23):
We are, we are.
Maybe that was downtown, maybeit was just something in the air
.
There are actually a number ofvery interesting issues on our
agenda to discuss this week.
I know one that I'm sure you'vebeen overhearing the
conversations we've been having,of course, after the horrific
incident that took place overthe weekend.
There is a story I'm reading,number one here.
It's how a family member oranyone else can apply for what's
(00:49):
known as a warrant ofapprehension pursuant to the
Mental Health Act.
Michael Mulligan (00:50):
Walk us through that?
I certainly will, and I justwant to make a couple of
preliminary comments about arelated issue.
We just heard a discussion inthe House about comments from
Premier Eby about his views ofthe case arising out of the Lupa
Lupa festival.
Adam Stirling (01:09):
Yes.
Michael Mulligan (01:10):
And there's discussion about sort of Premier
expressing his view about whatshould happen in the outcome.
Premier Eby should be verycareful about what he's doing if
he wishes that case to proceedproperly to trial, and the
reason for that it's aconstitutional one.
The idea of not havingpolitical interference and
(01:31):
public comments from Premier orothers about the outcome of a
criminal case is not simply agood idea and it is a good idea
not to be publicly commenting onwhat you wish the outcome of
the case to be when you're thePremier.
But we also have in Canada aconstitutional protection and in
particular Section 11D of theCharter, and that section is
(01:53):
this Proceedings in a criminaland penal matter is the heading.
A person is presumed innocentuntil proven guilty according to
law in a fair and publichearing by an independent and
impartial tribunal.
Now, one of the things wrappedup in that in terms of kind of
comments made by the premier isthat if you have the sort of
interference with the prospectof a fair trial because the case
(02:17):
presumably would be a jurytrial at the end of the day and
if you have the premier orattorney general or other
officials of that sortexpressing publicly and
repeatedly their comments aboutthe person's guilt or what the
outcome should be, you run therisk of preventing the sort of
fair and independent andimpartial hearing that is
(02:39):
required, and in the mostserious of cases, the result of
that could be there won't be atrial.
Right A judge isn't going topermit there to be a trial,
which is unfair.
And if you have the premier,for political reasons,
expressing views about theproper outcome of the case and
what ought to happen, the riskis you interfere with that and
you prevent the very thing thatyou want to happen.
(03:01):
And so I would urge Mr Eby toget some careful legal advice
before he continues to commentpublicly about what he thinks
the outcome of that case shouldbe, because he is, I think,
getting wading into verydangerous territory repeatedly
and publicly expressing hisopinion about what ought to
(03:21):
happen and what the resultshould be, which is not going to
be covered up by sort ofsophistry here and so on.
Eventually, you're going tohave, potentially, a judge
determining whether thatconstitutional right has been
breached, which could interferewith the prosecution.
So he should be very carefulabout what he's doing, because
it's not appropriate to have thepremier expressing his opinion
(03:42):
about the outcome of an ongoingserious criminal case.
The way he's doing, he runs therisk of preventing that from
happening, so that would be mypreliminary advice to him.
Interesting.
Now getting to the case thatwe're talking about here, this
is a really interesting decisionand it relates both to that
(04:03):
tragic incident potentially andgenerally in terms of how the
mental health system operates inBC.
There's been some talk aboutwhether there ought to be
changes to that system orimprovements made to the
legislation.
But the Mental Health Act has aprovision in it that is rarely
used and I think it is veryimportant that people be aware
(04:26):
of it.
And there was a brand newdecision from Colwood here.
The judgment was on April the11th, and it's a detailed
discussion about the use of theprovision in the existing Mental
Health Act under Section 28that permits a family member or,
(04:47):
frankly, anyone, to apply for awarrant of apprehension in
order to have somebodyapprehended under the Mental
Health Act and held for a periodof, initially, 48 hours to
determine whether there shouldbe further involuntary treatment
provided to them.
And the reason this isinteresting and important and
(05:09):
people should know about it isit's a separate thing from the
powers that the police haveright To apprehend somebody
under the act.
This is a section which, forexample, a concerned family
member could use, right If theythought that that was necessary,
or somebody else in thecommunity, and so the process
(05:30):
essentially involves making anapplication to a provincial
court judge for this kind of awarrant, that warrant of
apprehension, and the provincialcourt judge where there is that
kind of an application hasvarious things they need to
consider when determiningwhether to issue the warrant.
(05:50):
And the judge in this casecommented that while these in
the past these kinds ofapplications have been rare,
that the judge hearing thisapplication has heard six of
them since the fall of 2024.
Has heard six of them since thefall of 2024.
And so there's some indicationthat people may be getting the
message.
There is an alternative here Ifsomebody has, like a family
(06:10):
member, a child or somebody elsewho's struggling with mental
health challenges and they'renot getting any assistance with
it.
So the first part of the judgeneeds to be satisfied of and
this is an interesting thinggiven the nature of the
application they first of allneed to be satisfied that the
person to whom the warrant ofapprehension is sought is a
(06:31):
person with a mental disorder.
Now, the reason that's a littlecomplicated, of course, is the
judge isn't a doctor, right?
Adam Stirling (06:38):
No.
Michael Mulligan (06:38):
And typically these applications are made ex
parte, the person's not thereright.
Yeah, are made ex parte.
The person's not there, right.
And so the judge in this casepointed out that there isn't
going to be, in some cases, adiagnosis this particular
decision that occurred on Aprilthe 11th.
The only thing this person hadbeen diagnosed with, I think,
was attention deficit disorder,which is not something you're
(06:59):
going to wind up voluntarily inthe mental health system for.
But, as the judge pointed out,the issue to be determined is
not a diagnosis.
It doesn't require the judge todetermine if there is a mental
illness there.
They need to determine whetherthere is a reasonable basis to
(07:19):
believe that so and so in thisparticular case, it involved a
person who seemed to bedeteriorating and was doing
various unusual things.
She believed that she hadgotten into a telepathic
relationship with somebody onTikTok.
She believed that PrimeMinister Trudeau had murdered
(07:39):
her non-existent brother.
She'd stopped eating andsleeping regularly.
She thought her grandmother wastrying to poison her with
laundry detergent, and then shewas doing other odd things, like
she ran out of the house and,with her child, wound up
sleeping in the subzerotemperature next to a neighbor's
driveway, and then, when theambulance was called to show up
(08:00):
there to do a check on her, shefled barefoot in the snow,
without a jacket.
Show up there and do a check onher.
She fled barefoot in the snowwithout a jacket, right.
And so on that fact pattern, thejudge didn't need to make a you
know diagnosis of does thisperson have a mental illness and
what is the mental illness?
That it is enough that thejudge was satisfied on that
basis that the person likely hada reasonable basis to believe
(08:24):
the person had a mental illnessthat would seriously impair
their ability to reactappropriately to the environment
, associate with others and soon.
And so that's the way that wasanalyzed.
That's the first criteria.
Then the judge has to besatisfied that they require
treatment through like a mentalhealth facility, right.
So on that fact pattern, yes,the person seems to require
(08:46):
treatment.
And then the next criteria.
The third one is do theyrequire care or supervision for
one of four possible purposes?
So the first is to prevent theperson's substantial mental
deterioration.
Right To prevent a person'ssubstantial physical
deterioration or these twoperson substantial physical
(09:08):
deterioration or these two forthe purpose of protecting the
person or for protecting others,right.
And so in this case the judgewas concluding that there's an
evidentiary basis there toensure that you know, for
example, the person's child isprotected, that they're
protected, right, they'rerunning around outside without
shoes, on in the snow, sleepingoutside.
That's obviously not wise, andso the judge had no problem
(09:28):
being satisfied of that.
There also needs to be anassessment about whether the
person cannot be suitablyassessed as a voluntary patient,
right, if somebody's saying,hey, I'm going to the hospital
now to get help, well, theydon't need a warrant for them.
But, like in this case, theperson was running away from the
attendants trying to assessthem.
Okay, that doesn't seem to beso.
And then whether this can bedone without unreasonable delay.
(09:55):
And so the judge went throughall of that and concluded that,
indeed, it met that criteria fora warrant of this sort under
Section 28.
And the result will be there'llbe a warrant for their arrest,
and they would be then takeninto custody and taken to a
facility where they can beproperly diagnosed to determine
whether they need to becommitted for involuntary
(10:18):
treatment.
And so this is something thatpeople should know about.
It's something that they caninitiate on their own.
It would be helpful to have thehelp of a lawyer doing it, but
it may be pretty important,right?
You can imagine if, for example, you were a parent watching
your child.
You know display actions likewas described in this case.
(10:40):
It provides an outlet so thatpeople would be able to take
some control of that, go tocourt and have a decision made
and then potentially do anassessment and get help.
Now I should say it's importantto know about.
It exists right now, it can beused right now, but all of these
(11:02):
things, of course, are alldependent on there in fact being
a place for there to be actualtreatment beyond some initial
assessment.
Right, and if you have acircumstance where there's just
nowhere for the person to go andthey're just released back into
the community with the hopesthat, you know, somehow people
will check on them or dosomething, that may not solve
all problems.
So really at the core of all ofthis is the need to have
(11:24):
facilities where actualtreatment can occur.
Right Orders and warrants andchanging the law and amending
the act and all of that reallyhave no particular impact unless
there's a meaningful place andresources for people to actually
get assistance.
And so you know, I don't thinkwe do need too much in terms of
(11:44):
inquiry or consideration torealize that if you want to
provide help for people withmental health challenges, you
need to have resources to do it.
It's not really in most cases, alegal problem, right?
But you know this demonstrateswe have right now tools that
allow for this sort ofintervention.
(12:05):
It's a good tool, but you know,the tool gets you legal tool
gets you nowhere unless there'sactually a bed and a doctor and
a nurse and various people tohelp.
And so, anyways, it's a veryinteresting case.
It sets out in detail whatneeds to happen, the various
steps and what a judge needs toconsider, and it looks like at
least some people arediscovering that this is an
(12:28):
available option.
So I hope listeners keep thatin mind and let other friends
and family know that there is ascheme in place that they can
avail themselves of.
If they have a family member orfriend or somebody who appears
to be suffering from mentalillness and is deteriorating, is
at risk to themselves or others, there's something they can do
about it.
This is it, and from there it'sjust a matter of whether there
(12:50):
will be sufficient publicresources to provide whatever
help is diagnosed by the doctors.
Adam Stirling (12:57):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking, will continueright after this.
We're back on the air here atCFAX 1070, legally Speaking with
Michael Mulligan from MulliganDefense Lawyers.
Michael up next it says adangerous offender designation
upheld on appeal for acharacterization that I don't
even think I've ever said outloud before.
What's happening here.
Michael Mulligan (13:18):
So maybe we'll start with that, because it is
a term people may be unfamiliarwith.
And so it is a fellow who isdescribed by the trial judge as
an entrenched, prolifichomosexual hebephile.
And a hebephile is distinctfrom a pedophile in the sense
that they have a sexualattraction to children between
(13:41):
the ages of like 11 and 14,early adolescence, and so you
can tell from that description.
It is astoundingly grim, andthe case involved a appeal to
the court of appeal about adesignation of this person as a
dangerous offender, and we'vetalked about that in passing
(14:01):
before, the concept of somebodywho is designated as a dangerous
offender, which is somethingthat can happen when you have a
determination.
Ultimately that there I mean,as the judge said, in this case
there was no reasonablepossibility that the appellant
would make sufficient progresswithin a fixed sentence to take
advantage of supervisionmechanisms to provide for his
(14:21):
release in order to control hisrisk in the community.
And so what do you do withsomebody who has demonstrated
themselves to be justincorrigible, essentially in
terms of their criminal conduct,and that kind of a danger,
essentially in terms of theircriminal conduct and that kind
of a danger?
And this fellow was describedas somebody who had this long
(14:48):
pattern of sexual offending.
It started in 1978.
He was convicted on a total ofsexually assaulting nine young
boys between the ages of 12 and16.
And he was described initiallyin his offending as starting out
with using force and fear andthen became eventually later
offending more sophisticated,progressed to targeting
vulnerable boys, lure them intospending time grooming them and
(15:12):
providing drugs and so forth tothem, and that's what occurred
through the predicate offensethat led to the application for
this dangerous offenderdesignation them.
And that's what occurred in thesort of the predicate offense
that led to the application forthis dangerous offender
designation.
This man had, in violation of arecognizance that prohibited him
from having contact withchildren and having served, not
(15:35):
long before this, a 10-yearprison sentence for similar
conduct, engaged in thisgrooming behavior with another
young boy, lied to others,telling, for example, the
complainant's father that he wasan outreach worker, and then
used that as a mechanism for hisoffending.
And so, given all of thatbackground, the trial judge and
(15:57):
ultimately the Court of Appeal,paid attention to, for example,
opinion from a psychiatrist,which is one of the monitoring
that this fellow would beunmanageable, essentially in
(16:24):
terms of his risk in thecommunity.
And given that determination,the judge rejected what was a
defense submission on sentencing.
The defense suggested a periodof 16 years in prison, such that
he would be 78 years of agewhen he was released.
Years in prison such that hewould be 78 years of age when he
was released.
The judge found that even that,combined with a maximum 10
(16:45):
years of intensive supervision,would be insufficient to protect
the public, despite the factthat there was expert evidence
that the dangerousness ofsomebody like this diminishes
with age.
And so, given all of that, bothat the original sentencing and
(17:07):
now in the appeal decision thatwas just released, the
determination was that this manwas properly designated as a
dangerous offender, and whensomebody is designated in that
way, what they wind up with is asentence basically forever, and
the person is not to bereleased unless the parole board
(17:27):
was to determine that he didn'tpose a risk to the community.
And, given this background, thelikely answer to that is that
will never occur, and so it iscertainly a very grim case, but
I thought it was worthmentioning, in terms of both
that diagnosis and also just adescription of you know what it
(17:48):
is we do and on what basis, whenyou've got somebody who is just
incurably dangerous, and thesystemic response to that is to
impose a sentence whereby theperson will never be released,
even if the sentence for theparticular offense, while
serious, might not havewarranted you know, 16 years
(18:09):
might have been an appropriatesentence for the particular
crime.
When you have somebody like this, where there's just
determination made that there'sno basis to believe that after
any period of time the publiccould be safe and there wouldn't
be other serious offending ofthis sort, this is the result
(18:30):
and that's how the justicesystem deals with it.
So, yes, people should be awareof that.
When you do have people of thissort and happily they're rare
the systemic response is that wejust don't let them out.
And so that's the latest fromthe Court of Appeal on the
dangerous offender review.
Adam Stirling (18:45):
You and I have one minute 45 seconds remaining.
Michael Mulligan (18:49):
Okay, final case.
It's a case which is an appealto the Court of Appeal over the
certification of a class actionagainst WestJet, and it involves
an interesting issue of federalparamountcy.
And what's going on here isthat the claim is being brought
by people with disabilities thatrequire more than one seat to
(19:12):
fly on an airplane, likesomebody who has a particular
type of wheelchair or something.
They need more space.
And there was a decision made afew years ago, in 2008, by the
Canada Transportation Agencythat said for domestic flights,
airlines are only permitted tocharge a fee per passenger, not
per seat.
But that decision by theTransportation Agency federal in
(19:34):
Canada only applied to domesticflights, not international ones
, does only apply to domesticflights, not international ones,
and so WestJet at least chargesif a person needs two seats,
they have to pay for two seats,right?
And the claim is being broughtin part on alleged breach of
provincial legislation, and oneof the arguments made by WestJet
(20:01):
is that, well, hold on a minute.
You know airline regulation,including international travel,
is something handled by thefederal government under the
Canada Transportation Agency, sothe BC Supreme Court and
provincial legislation shouldhave nothing to do with that.
And they referred to thatinteresting concept of the
concept of paramountcy.
And in Canada, of course, wehave a federal system.
We've got laws that are federaland provincial.
(20:23):
And what do you do whensometimes things have sort of a
dual aspect to it?
Like you might have generallaws in BC about disability
discrimination, but you've gotfederally laws surrounding
airplanes flying right, and sothe argument is well, the
provincial stuff should havenothing to do with it.
This should be just dealt withunder that federal legislation.
(20:44):
What the Court of Appeal pointedout is that that concept of
paramountcy it's real, it exists, and where there is a conflict
between federal and provinciallegislation, the federal
legislation wins right.
But when you're applying itthere should be an attempt to
harmoniously interpret the twodifferent pieces of legislation
in a way that doesn't make themincompatible.
And it's a high burden to showthat the federal legislation
(21:07):
would be sort of made inoperableby what the province has done.
And so, even though that is aconcept, it does exist and the
federal legislation takesparamount see when they can't be
reconciled.
The conclusion was it's notclear and obvious that you
cannot reconcile the federallegislation with provincial
legislation dealing with thingslike discrimination and
disabilities.
So the net result even thoughparamountcy exists, it doesn't
(21:30):
prevent the claim here, and theclaim by people that need two
seats because they're in awheelchair for international
flights will be allowed tocontinue.
That's the latest from theCourt of Appeal.
Adam Stirling (21:39):
Michael Mulligan, with Mulligan Defense Lawyers,
Legally speaking during thesecond half of our second hour
every Thursday.
Thank you so much.
Pleasure as always.
Michael Mulligan (21:46):
Thanks so much .
Always great to be here.
Adam Stirling (21:47):
All right, quick break News is next.
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