August 7, 2025 • 20 mins
A fascinating exploration of justice, liberty, and the limits of government power unfolds through three recent BC legal cases. When a minimum-security prisoner at William Head was caught embracing a senior correctional officer, the warden's decision to transfer him to a higher-security facility backfired spectacularly. The BC Supreme Court ruled the decision "unreasonable," highlighting how even prisoners retain certain liberties that can't be arbitrarily removed. The judge particularly noted the warden's failure to address the significant power imbalance between the inmate and staff member – a consideration that might have led to very different outcomes had gender roles been reversed.
Border security technology stars in our second case, where sophisticated imaging detected 64 kilograms of cocaine hidden in the wall of a semi-trailer truck cab. The driver's claim of being a "blind courier" unraveled when experts testified that the elaborate hidden compartments would have cost upwards of $60,000 and taken weeks to install – an investment no one would make only to hand the vehicle over to an unwitting driver. The case reveals not only the sophisticated methods of drug detection at the border but also provides expert confirmation that cocaine primarily flows northward from Central America through the US into Canada, contradicting certain political narratives about cross-border drug trafficking.
Our final case demonstrates the limits of property rights in Canada as BC mink farmers lost their final appeal against the government's pandemic-era decision to permanently shut down their industry. Unlike the United States, Canada offers significantly less constitutional protection for private property, allowing governments broad regulatory powers without triggering compensation requirements. Whether you're concerned about prisoner rights, border security, or government regulation of business, these cases illuminate the delicate balance between individual liberties and state authority in Canadian society. What other industries might face similar regulatory challenges in the future?
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 our regular segment, joined as
always by barrister andsolicitor with Mulligan Defense
Lawyers.
It's Legally Speaking on CFAX1070 with Michael Mulligan.
Afternoon.
Michael, how we doing.
Michael Mulligan (00:10):
Hey, good afternoon.
Adam Stirling (00:11):
I'm doing great, always good to be here Some
interesting items on the agendathis week.
I'm reading number one.
It says transferring a WilliamHead prisoner to a higher
security prison for hugging andconsoling a senior staff member.
What happened?
Michael Mulligan (00:27):
Once again, not good things, and so the
background of it is this localcase, of course, from William
Head, and the inmate involved inthis case had been serving, and
is serving, a sentence forfirst degree murder.
He'd been originallyincarcerated back in 2015, but
apparently had done well incustody and had eventually as of
(00:50):
2023, been classified as aminimum security prisoner.
And the way that works is thatin the federal penitentiary
system, there are differentcategories high security, medium
, low and one of the things thesystem does is determine, you
know, is somebody a risk?
Are they going to try to escapeor commit a further offense or
(01:12):
something, and then put theperson in the appropriate sort
of institution.
William Head, as many listenerswill know, is a minimum
security institution.
The inmates there areresponsible for like cooking
their own food and cleaningtheir own rooms.
They would live in a communalway in a townhouse, with the
idea of trying to teach peoplethe sort of life skills you
(01:34):
would need eventually if youwere released right, so that you
would know how to budget yourmoney and prepare your own food
and get along with roommates,and all those sort of skills you
don't get living in a concretebox.
Yes, so this fellow had woundup being classified as minimum
and he wound up beingtransferred to William Head
Penitentiary in 2023.
(01:54):
And so far, so good.
Year when a staff member sent areport to the warden indicating
that they observed this inmatein a darkened, locked room
engaging in an embrace with aperson described as a female
(02:16):
correctional manager, a seniorperson, and, according to the
email, kissing her.
And that report resulted in thewarden conducting some sort of
an inquiry into that andultimately made a.
After a hearing where he gotsome written submissions, made
(02:38):
the decision to increase thesecurity rating of the
indictment from minimum tomedium and then had him
transferred out of William Headto a medium security prison.
Now here's how this gets intocourt.
So there is a thing in Canada,and some other countries as well
, called a habeas corpusapplication, and a habeas corpus
(03:01):
application is describedsometimes as sort of an
exceptional remedy.
It's served by a superior courtjudge and it can produce an
order to release somebody whohas been deprived of liberty in
some way, and the releasedoesn't necessarily mean you're
free to go anywhere you want,right, but even prisoners have
(03:24):
some residual degrees of liberty, right?
You know, if the warden said,I'm locking you in a tiny room
for 24 hours a day forever,right?
Well, that's not on, right,that would probably get reviewed
.
And the same can occur withthings like an involuntary
transfer to a higher securityprison.
You're going from living in atownhouse cooking your own food
to being in a concrete boxsomewhere, right?
(03:45):
So that would qualify as adeprivation of liberty, even
though you weren't free in acomplete sense, but you were
freer.
And so that's how the case gotto the BC Supreme Court for a
judge to review the decision ofthe warden.
And when there's that kind ofreview the warden and when
there's that kind of review,sort of like an administrative
(04:07):
judicial review the judge isanalyzing whether the decision
in this case, well, it's twodecisions one to raise the
security classification fromminimum to medium as a result of
this embrace, and then thetransfer.
And the case is an example ofwhat is required in terms of
(04:28):
administrative decision making,right, people like government
officials, who make decisionsabout people, don't get to come
out like you know, a scene fromthe gladiator and do a thumbs
down, right, they have to givereasons for what they're doing,
right.
And so that's what occurred inthis case, and the judge looked
at the reasons given by thewarden and concluded in several
(04:52):
respects they were simplyunreasonable.
And the unreasonable elementsof them included the inmate, in
this case repeatedly, clearlydenied kissing.
The senior correctional managerhe had acknowledged an embrace
said that he had hugged herbecause she had shared some
(05:12):
troubling emotional things forher, he was consoling her that
was his evidence and said thathe had done this on another
occasion with the same personand that this senior
correctional officer had engagedin similar conduct with other
incarcerated people.
And so, first of all, the judgefound the warden just didn't
deal with in a meaningful waythat disagreement about what was
(05:34):
going on Was this a hug or wasthis a hug and a kiss?
And just hadn't resolved thatand no explanation for why that
wasn't resolved.
And there's a requirement tomeaningfully engage with things
that are actual issues in adecision, right, and that was
part of it, what was going onhere and just wasn't
meaningfully decided.
(05:55):
Another thing that Wardendidn't deal with in a meaningful
way was well, what about analternative solution?
If you don't think theseinmates should be there, why not
just transfer them to anotherminimum security institution?
How does hugging somebody turnyou into a medium security risk?
And that wasn't considered.
And then the final thing whichthe judge found to be most
(06:15):
significant, was that the wardenfailed to the judge's term
grapple with the existence ofthe power imbalance between the
inmate and the seniorcorrectional officer, which is
important.
The inmate apparently said atone point he felt uncomfortable
about this, but he's an inmateand he's sort of required to
comply with things that arebeing requested of him.
(06:36):
He's serving a life sentenceand has to do what correctional
officers are telling him to do.
You can imagine if the genderroles were reversed.
I imagine it might have beenquite a different decision.
Adam Stirling (06:47):
If you're in a women's prison.
Michael Mulligan (06:48):
you come into a dark room and there's a male,
senior male official hugging afemale prisoner who might have
been kissing him.
I doubt the response would bewell, get her out of here, she's
a security risk.
And so the judge found thatthat also just wasn't reasonable
.
You just didn't address thefact that you're dealing with
somebody who's basicallypowerless and can be ordered
(07:09):
around by a senior correctionalofficer and you just have to do
what they're telling you.
And so, given all of that, thejudge concluded that the
decision to raise the securityclassification and transfer him
out of there were just bothunreasonable.
The warden didn't address thosethings, didn't sort out who
would be in charge of thisembrace.
The warden didn't address thosethings, didn't sort out who
(07:30):
would be in charge of thisembrace, didn't sort out what in
fact happened and didn't lookat reasonable alternatives other
than sending him to a highersecurity institution.
And so the judge overturned it.
The warden's been overruled andthe result is that the result
of the habeas corpus applicationwas successful.
The petitioner is entitled tohis costs and the direction is
(07:50):
that he be immediately releasedfrom his mountain institution
where he was transferred to andreturned to a minimum security
institution immediately.
It doesn't necessarily have tobe William Head, but that's
where he's got to go and got toget on it.
So that's the latest fromWilliam Head habeas corpus
applications and what goes on ifan inmate is caught embracing a
(08:11):
correctional officer in a darkroom.
Adam Stirling (08:14):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking continuesright after this.
Legally Speaking continues.
Michael Mulligan from MulliganDefense Lawyers.
Michael up next on the agenda.
I'm reading here a convictionfor importing cocaine from the
United States into Canada,upheld on appeal, and that says
64, but I'm not sure what theunit is.
Michael Mulligan (08:35):
Yeah, 64 kilograms which is for those of
us that may not have our headentirely around the weight
metric system 141 pounds ofcocaine, so a fair bit of
cocaine, and, contrary to whatyou might hear from President
Trump, one of the interestingthings was expert evidence in
the case about the direction oftravel for drugs from Central
(08:56):
America through the UnitedStates, up I-5 and into Canada
as the ordinary route of thesethings, at least for cocaine,
and the fact pattern here is aninteresting one.
I thought people might beinterested to hear about both
how this was detected andevidence in the case.
That was expert evidence aboutthe two kinds of couriers that
(09:18):
are used for cross-bordertransportation of drugs, and the
case turned really on that andthe fact that the two types of
couriers are either couriers whoknow they are carrying drugs or
the other type of courierreferred to as a blind courier,
and a blind courier would besomebody who is transporting
(09:39):
drugs not knowing that they'retransporting drugs, right, and
that could be anything from somesmall time thing like putting
something in a person's suitcaseto potentially, for example,
loading a bunch of drugs in withother let's say, fruit or
vegetables or whatever and havesome truck driver who doesn't
have any idea what's in the backof their truck and have them
(10:00):
drive it across the border.
And the import of that, ofcourse, is, if you're a blind
courier, virtually by definition, you don't know what's in there
.
You haven't done anythingintentionally wrong, right?
So you wouldn't have anyliability.
And this case involved asemi-trailer truck, and the
drugs in this case,interestingly, were not in the
(10:22):
like where the goods would be inthe back.
What happened is, when thetruck was coming across, they
decided to send it for asecondary inspection and imaging
of the truck, so I guess sortof an X-ray imaging of the truck
showed the presence of a massin the back wall of the cab that
would normally be hollow.
(10:43):
And the other interesting thingis that the border security
keep images, previous images ofthe same vehicle to compare them
, and they compared the imagewith an image that was taken
back in 2018, when there was nosimilar anomaly found in the
back of the truck right throughthe wall of the truck, and so
(11:05):
that led to further scrutiny,right, they started with the
imaging, saw this mass, and thenthey eventually found at the
back of the cab there was a bunkarea, two bunks top and bottom
Top bunk.
Well, both bunks had panels infront of them like decorative
panels, which they popped off,and then there were something
(11:28):
like 20 or 30 screws which theyundid and after you took all of
them off the top one, they foundinside it the 64 kilograms of
cocaine.
The bottom bunk they took off.
It had a similar panel butnothing in it.
Now, at the trial, the otherevidence included some
(11:49):
interesting evidence aboutfingerprints and what they found
was that they foundfingerprints that matched the
driver of the truck on the panel, the backside of the lower
panel, the one that had nothingin it.
The upper panel had a palmprint that was not the driver's
and there were some fingerprintson the drugs not the driver's.
(12:12):
The driver testified and said Ihad no idea that these drugs
were in there and he claimedthat when he first purchased the
truck after he had arranged tobuy it, when he picked it up a
few months later he noticedthere'd been a bunch of work
done on the inside of it,including sort of cosmetic work,
and he claimed that he had,when there's no air conditioning
(12:34):
in the back, took off thebottom panel to see what was
going on, if there was airconditioning wires or ducts back
there, found none, put it backon.
Didn't think that was unusual,thought it was just a space for
wires, I guess for airconditioning, where there was
none.
So that was his explanation forwhy his fingerprints were back
there.
But the judge in this case foundthat there were a number of
(12:55):
things which persuaded herbeyond a reasonable doubt that
he was aware of what was goingon.
And that included expertevidence from a person who gave
expert evidence about hiddencompartments in vehicles and
said that these particular kindof hidden compartments would
have been taking a long time toput in, in the order of weeks to
(13:16):
install, and would have costbetween $60,000 and $100,000 to
put in.
I guess a whole bunch of customwork and all those screws I
guess are expensive, I'm notsure, but very careful custom
work to create these hiddencompartments.
And the judge found it unlikelythat the person selling the
truck would have spent a longperiod weeks and a very large
(13:37):
amount of money putting in thesesecret compartments only to
then turn the truck over tosomebody.
He thought that was just toospeculative or too unlikely if
you were trying to create yourown blind courier, if you were
trying to create your own blindcourier, and the expert included
evidence about why blindcouriers can be problematic if
you're a drug trafficker,including things like you've got
(13:59):
no control over where theperson is actually going.
They could change theirschedule, you know.
You thought they were takingthe cherries to Vancouver, but
they I don't know decided todivert to Seattle or something,
and so you might be chasingaround your load of cocaine, and
so ultimately the judge foundthat there was rejected his
evidence.
The other interesting thing onthe appeal is that both lawyers
(14:22):
made submissions about whatshould happen, and then, two
weeks before the judgment cameout, the judge reserved.
The defense counsel had gottentranscripts of everything that
was said at the trial, andsometimes those take a little
while to type up, and thedefense lawyer thought well,
there's some additionalimportant points in here, and
prepared 47 pages of additionalwritten submissions pointing out
(14:44):
specific things that theyhadn't noticed when they made
their oral submissions, beforereading the transcripts.
And the Crown objected to thejudge being given those
additional submissions, and sothere was a hearing about
whether the judge should readthose things, and ultimately she
decided no, she wasn't going toread them, on the basis that
(15:05):
they had already.
Both the Crown and the defensehad an opportunity to make
submissions and found that itwasn't appropriate to allow
additional written submissionsafter reading the transcripts.
Interestingly, on the appealthe Court of Appeal said that's
fine, there was no necessity foradditional submissions being
permitted, and so the judge madeher decision in convicting the
(15:27):
man without reading theadditional written arguments
made, after the lawyer reviewedthe transcripts.
But the Court of Appeal foundthat was fine and there was no
right to do that and didn'tthink it would have made a
significant difference and soupheld the conviction.
And so I thought it was aninteresting case, both in terms
of that issue and that conceptof blind and not blind couriers
(15:51):
and also just the degree ofscrutiny that goes on at the
border, including imaging andcomparing the images of vehicles
on different occasions, wherethey've been imaged on multiple
times to see if there are anychanges.
And that's what prompted themto take the time to unscrew the
panels.
So clearly there's some carefulscrutiny going on at the
Canadian border, at least on theCanadian side, and clear
(16:14):
evidence that the direction oftravel, at least for cocaine, is
not from Canada South, it'sfrom the US North, which is
interesting in the currentcontext of tariffs being imposed
for a failure to stop drugsgoing across the border.
It's pretty clear at least thedirection that drug is traveling
.
Adam Stirling (16:31):
All right, three and a half minutes left and it
says an appeal from BC decisionto force all mink farms to close
dismissed.
Michael Mulligan (16:41):
Yeah.
So if you're feeling bad as anAirbnb owner getting shut down,
you'd be feeling worse if youwere a mink farmer.
And the background of this caseis that it originated back in
the time of COVID, covid-19.
And in 2021, the provincialgovernment decided to change
regulations to force all minkfarms to close permanently, and
(17:05):
they did so on the basis ofsaying that there was evidence
about COVID spreading amongstmink and how they could get
respiratory viruses, and sothat's the end of the mink farms
in British Columbia, and itresulted in this piece of
litigation where the minkfarmers were arguing that that
government decision amounted toeither a malfeasance in public
(17:30):
office or a constructive takingof their property, for which you
might get compensation.
Now, the malfeasance in publicoffice argument is one which
courts have said.
That is an argument you canmake.
If you could establish that thegovernment had engaged in
activity which was egregious and, for example, intended to
(17:55):
injure a person or classes ofpersons Like if you had a
government decision just out of,let's say, political vengeance,
where you're trying to causeharm to somebody kind of like
the daily Trump decisions thatcould be reviewed.
But that kind of a review hasto be used with great caution
and restraint, because it'sintended, as the court said, to
deal with egregious intentionalmisconduct by the government,
(18:16):
not for maladministration,incompetence or bad judgment
which this may or may not havebeen, but that's not enough to
review it and then also rejectedthe idea that there could be
any hope of success on the basisof a constructive taking.
And the argument there is thatyou know, if you have your
property expropriated, takencompletely by the government,
(18:38):
there's a presumption that youwould get compensation for it.
It's not a constitutionalrequirement but it's a
presumption.
And the concept of constructivetaking comes from, amongst
other cases, a decision calledAnnapolis that the Supreme Court
of Canada dealt with a fewyears ago, where a municipality
didn't say I'm expropriatingyour, it was somebody who wanted
to develop a large piece ofproperty to put housing and
(19:00):
stuff on it, and instead theyjust put in conditions meaning
you couldn't use it for anythingelse other than really park
land, right.
They say, look, you can only.
And so yeah, I haven't takenthe property from you, I've just
made it impossible for you touse it such that the public can
now just use your property as apark right.
And so that was found to be, inthat case, a constructive taking
deserving of compensation, andthe novel argument that the mink
(19:24):
farmers wanted to make is thatthey were arguing that what was
going on here was not someeffort to control COVID-19.
They were alleging that thegovernment was making a
political decision, getting somepolitical benefit for that, and
that they had caved to theanti-fur lobby and public
opinion in banning mink farms,and so it was sort of an idea
that maybe they were gettingsome other kind of a benefit
(19:46):
like that a public, maybe apolitical benefit, something
else, some benefit for thegovernment by banning the
continued mink farming.
But the court found that thatwas so novel as an
interpretation of that.
It wasn't the equivalent of youknow, telling you you can only
build playgrounds and swings onyour property that you
(20:07):
previously wanted to buildhouses on, which amounted to
just taking it for public use.
That doesn't do it.
That might be like if thegovernment said we're taking all
Airbnbs and turning themimmediately into free homeless
shelters or something.
That might be an example of aconstructive taking of something
, but it didn't apply here.
(20:27):
So it's another example of howin Canada, unlike the US, we
don't have a protection forprivate property and so you can
have decisions like shuttingdown all Airbnbs or shutting
down mink farms, and unlessyou've got a particularly novel
argument, you're likely to justbe out of luck on both those
grounds.
So that's the latest from theCourt of Appeal with respect to
(20:49):
mink ranching.
Adam Stirling (20:50):
Michael Mulligan, with Mulligan Defence Lawyers,
legally speaking Second half ofour second hour every Thursday
here on CFAX.
Thank you, michael, pleasure asalways.
Thanks so much, always great tobe here.
It's time for our regular segment, joined as
always by barrister andsolicitor with Mulligan Defense
Lawyers.
It's Legally Speaking on CFAX1070 with Michael Mulligan.
Afternoon.
Michael, how we doing.
Michael Mulligan (00:10):
Hey, good afternoon.
Adam Stirling (00:11):
I'm doing great, always good to be here Some
interesting items on the agendathis week.
I'm reading number one.
It says transferring a WilliamHead prisoner to a higher
security prison for hugging andconsoling a senior staff member.
What happened?
Michael Mulligan (00:27):
Once again, not good things, and so the
background of it is this localcase, of course, from William
Head, and the inmate involved inthis case had been serving, and
is serving, a sentence forfirst degree murder.
He'd been originallyincarcerated back in 2015, but
apparently had done well incustody and had eventually as of
(00:50):
2023, been classified as aminimum security prisoner.
And the way that works is thatin the federal penitentiary
system, there are differentcategories high security, medium
, low and one of the things thesystem does is determine, you
know, is somebody a risk?
Are they going to try to escapeor commit a further offense or
(01:12):
something, and then put theperson in the appropriate sort
of institution.
William Head, as many listenerswill know, is a minimum
security institution.
The inmates there areresponsible for like cooking
their own food and cleaningtheir own rooms.
They would live in a communalway in a townhouse, with the
idea of trying to teach peoplethe sort of life skills you
(01:34):
would need eventually if youwere released right, so that you
would know how to budget yourmoney and prepare your own food
and get along with roommates,and all those sort of skills you
don't get living in a concretebox.
Yes, so this fellow had woundup being classified as minimum
and he wound up beingtransferred to William Head
Penitentiary in 2023.
(01:54):
And so far, so good.
Year when a staff member sent areport to the warden indicating
that they observed this inmatein a darkened, locked room
engaging in an embrace with aperson described as a female
(02:16):
correctional manager, a seniorperson, and, according to the
email, kissing her.
And that report resulted in thewarden conducting some sort of
an inquiry into that andultimately made a.
After a hearing where he gotsome written submissions, made
(02:38):
the decision to increase thesecurity rating of the
indictment from minimum tomedium and then had him
transferred out of William Headto a medium security prison.
Now here's how this gets intocourt.
So there is a thing in Canada,and some other countries as well
, called a habeas corpusapplication, and a habeas corpus
(03:01):
application is describedsometimes as sort of an
exceptional remedy.
It's served by a superior courtjudge and it can produce an
order to release somebody whohas been deprived of liberty in
some way, and the releasedoesn't necessarily mean you're
free to go anywhere you want,right, but even prisoners have
(03:24):
some residual degrees of liberty, right?
You know, if the warden said,I'm locking you in a tiny room
for 24 hours a day forever,right?
Well, that's not on, right,that would probably get reviewed
.
And the same can occur withthings like an involuntary
transfer to a higher securityprison.
You're going from living in atownhouse cooking your own food
to being in a concrete boxsomewhere, right?
(03:45):
So that would qualify as adeprivation of liberty, even
though you weren't free in acomplete sense, but you were
freer.
And so that's how the case gotto the BC Supreme Court for a
judge to review the decision ofthe warden.
And when there's that kind ofreview the warden and when
there's that kind of review,sort of like an administrative
(04:07):
judicial review the judge isanalyzing whether the decision
in this case, well, it's twodecisions one to raise the
security classification fromminimum to medium as a result of
this embrace, and then thetransfer.
And the case is an example ofwhat is required in terms of
(04:28):
administrative decision making,right, people like government
officials, who make decisionsabout people, don't get to come
out like you know, a scene fromthe gladiator and do a thumbs
down, right, they have to givereasons for what they're doing,
right.
And so that's what occurred inthis case, and the judge looked
at the reasons given by thewarden and concluded in several
(04:52):
respects they were simplyunreasonable.
And the unreasonable elementsof them included the inmate, in
this case repeatedly, clearlydenied kissing.
The senior correctional managerhe had acknowledged an embrace
said that he had hugged herbecause she had shared some
(05:12):
troubling emotional things forher, he was consoling her that
was his evidence and said thathe had done this on another
occasion with the same personand that this senior
correctional officer had engagedin similar conduct with other
incarcerated people.
And so, first of all, the judgefound the warden just didn't
deal with in a meaningful waythat disagreement about what was
(05:34):
going on Was this a hug or wasthis a hug and a kiss?
And just hadn't resolved thatand no explanation for why that
wasn't resolved.
And there's a requirement tomeaningfully engage with things
that are actual issues in adecision, right, and that was
part of it, what was going onhere and just wasn't
meaningfully decided.
(05:55):
Another thing that Wardendidn't deal with in a meaningful
way was well, what about analternative solution?
If you don't think theseinmates should be there, why not
just transfer them to anotherminimum security institution?
How does hugging somebody turnyou into a medium security risk?
And that wasn't considered.
And then the final thing whichthe judge found to be most
(06:15):
significant, was that the wardenfailed to the judge's term
grapple with the existence ofthe power imbalance between the
inmate and the seniorcorrectional officer, which is
important.
The inmate apparently said atone point he felt uncomfortable
about this, but he's an inmateand he's sort of required to
comply with things that arebeing requested of him.
(06:36):
He's serving a life sentenceand has to do what correctional
officers are telling him to do.
You can imagine if the genderroles were reversed.
I imagine it might have beenquite a different decision.
Adam Stirling (06:47):
If you're in a women's prison.
Michael Mulligan (06:48):
you come into a dark room and there's a male,
senior male official hugging afemale prisoner who might have
been kissing him.
I doubt the response would bewell, get her out of here, she's
a security risk.
And so the judge found thatthat also just wasn't reasonable
.
You just didn't address thefact that you're dealing with
somebody who's basicallypowerless and can be ordered
(07:09):
around by a senior correctionalofficer and you just have to do
what they're telling you.
And so, given all of that, thejudge concluded that the
decision to raise the securityclassification and transfer him
out of there were just bothunreasonable.
The warden didn't address thosethings, didn't sort out who
would be in charge of thisembrace.
The warden didn't address thosethings, didn't sort out who
(07:30):
would be in charge of thisembrace, didn't sort out what in
fact happened and didn't lookat reasonable alternatives other
than sending him to a highersecurity institution.
And so the judge overturned it.
The warden's been overruled andthe result is that the result
of the habeas corpus applicationwas successful.
The petitioner is entitled tohis costs and the direction is
(07:50):
that he be immediately releasedfrom his mountain institution
where he was transferred to andreturned to a minimum security
institution immediately.
It doesn't necessarily have tobe William Head, but that's
where he's got to go and got toget on it.
So that's the latest fromWilliam Head habeas corpus
applications and what goes on ifan inmate is caught embracing a
(08:11):
correctional officer in a darkroom.
Adam Stirling (08:14):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking continuesright after this.
Legally Speaking continues.
Michael Mulligan from MulliganDefense Lawyers.
Michael up next on the agenda.
I'm reading here a convictionfor importing cocaine from the
United States into Canada,upheld on appeal, and that says
64, but I'm not sure what theunit is.
Michael Mulligan (08:35):
Yeah, 64 kilograms which is for those of
us that may not have our headentirely around the weight
metric system 141 pounds ofcocaine, so a fair bit of
cocaine, and, contrary to whatyou might hear from President
Trump, one of the interestingthings was expert evidence in
the case about the direction oftravel for drugs from Central
(08:56):
America through the UnitedStates, up I-5 and into Canada
as the ordinary route of thesethings, at least for cocaine,
and the fact pattern here is aninteresting one.
I thought people might beinterested to hear about both
how this was detected andevidence in the case.
That was expert evidence aboutthe two kinds of couriers that
(09:18):
are used for cross-bordertransportation of drugs, and the
case turned really on that andthe fact that the two types of
couriers are either couriers whoknow they are carrying drugs or
the other type of courierreferred to as a blind courier,
and a blind courier would besomebody who is transporting
(09:39):
drugs not knowing that they'retransporting drugs, right, and
that could be anything from somesmall time thing like putting
something in a person's suitcaseto potentially, for example,
loading a bunch of drugs in withother let's say, fruit or
vegetables or whatever and havesome truck driver who doesn't
have any idea what's in the backof their truck and have them
(10:00):
drive it across the border.
And the import of that, ofcourse, is, if you're a blind
courier, virtually by definition, you don't know what's in there
.
You haven't done anythingintentionally wrong, right?
So you wouldn't have anyliability.
And this case involved asemi-trailer truck, and the
drugs in this case,interestingly, were not in the
(10:22):
like where the goods would be inthe back.
What happened is, when thetruck was coming across, they
decided to send it for asecondary inspection and imaging
of the truck, so I guess sortof an X-ray imaging of the truck
showed the presence of a massin the back wall of the cab that
would normally be hollow.
(10:43):
And the other interesting thingis that the border security
keep images, previous images ofthe same vehicle to compare them
, and they compared the imagewith an image that was taken
back in 2018, when there was nosimilar anomaly found in the
back of the truck right throughthe wall of the truck, and so
(11:05):
that led to further scrutiny,right, they started with the
imaging, saw this mass, and thenthey eventually found at the
back of the cab there was a bunkarea, two bunks top and bottom
Top bunk.
Well, both bunks had panels infront of them like decorative
panels, which they popped off,and then there were something
(11:28):
like 20 or 30 screws which theyundid and after you took all of
them off the top one, they foundinside it the 64 kilograms of
cocaine.
The bottom bunk they took off.
It had a similar panel butnothing in it.
Now, at the trial, the otherevidence included some
(11:49):
interesting evidence aboutfingerprints and what they found
was that they foundfingerprints that matched the
driver of the truck on the panel, the backside of the lower
panel, the one that had nothingin it.
The upper panel had a palmprint that was not the driver's
and there were some fingerprintson the drugs not the driver's.
(12:12):
The driver testified and said Ihad no idea that these drugs
were in there and he claimedthat when he first purchased the
truck after he had arranged tobuy it, when he picked it up a
few months later he noticedthere'd been a bunch of work
done on the inside of it,including sort of cosmetic work,
and he claimed that he had,when there's no air conditioning
(12:34):
in the back, took off thebottom panel to see what was
going on, if there was airconditioning wires or ducts back
there, found none, put it backon.
Didn't think that was unusual,thought it was just a space for
wires, I guess for airconditioning, where there was
none.
So that was his explanation forwhy his fingerprints were back
there.
But the judge in this case foundthat there were a number of
(12:55):
things which persuaded herbeyond a reasonable doubt that
he was aware of what was goingon.
And that included expertevidence from a person who gave
expert evidence about hiddencompartments in vehicles and
said that these particular kindof hidden compartments would
have been taking a long time toput in, in the order of weeks to
(13:16):
install, and would have costbetween $60,000 and $100,000 to
put in.
I guess a whole bunch of customwork and all those screws I
guess are expensive, I'm notsure, but very careful custom
work to create these hiddencompartments.
And the judge found it unlikelythat the person selling the
truck would have spent a longperiod weeks and a very large
(13:37):
amount of money putting in thesesecret compartments only to
then turn the truck over tosomebody.
He thought that was just toospeculative or too unlikely if
you were trying to create yourown blind courier, if you were
trying to create your own blindcourier, and the expert included
evidence about why blindcouriers can be problematic if
you're a drug trafficker,including things like you've got
(13:59):
no control over where theperson is actually going.
They could change theirschedule, you know.
You thought they were takingthe cherries to Vancouver, but
they I don't know decided todivert to Seattle or something,
and so you might be chasingaround your load of cocaine, and
so ultimately the judge foundthat there was rejected his
evidence.
The other interesting thing onthe appeal is that both lawyers
(14:22):
made submissions about whatshould happen, and then, two
weeks before the judgment cameout, the judge reserved.
The defense counsel had gottentranscripts of everything that
was said at the trial, andsometimes those take a little
while to type up, and thedefense lawyer thought well,
there's some additionalimportant points in here, and
prepared 47 pages of additionalwritten submissions pointing out
(14:44):
specific things that theyhadn't noticed when they made
their oral submissions, beforereading the transcripts.
And the Crown objected to thejudge being given those
additional submissions, and sothere was a hearing about
whether the judge should readthose things, and ultimately she
decided no, she wasn't going toread them, on the basis that
(15:05):
they had already.
Both the Crown and the defensehad an opportunity to make
submissions and found that itwasn't appropriate to allow
additional written submissionsafter reading the transcripts.
Interestingly, on the appealthe Court of Appeal said that's
fine, there was no necessity foradditional submissions being
permitted, and so the judge madeher decision in convicting the
(15:27):
man without reading theadditional written arguments
made, after the lawyer reviewedthe transcripts.
But the Court of Appeal foundthat was fine and there was no
right to do that and didn'tthink it would have made a
significant difference and soupheld the conviction.
And so I thought it was aninteresting case, both in terms
of that issue and that conceptof blind and not blind couriers
(15:51):
and also just the degree ofscrutiny that goes on at the
border, including imaging andcomparing the images of vehicles
on different occasions, wherethey've been imaged on multiple
times to see if there are anychanges.
And that's what prompted themto take the time to unscrew the
panels.
So clearly there's some carefulscrutiny going on at the
Canadian border, at least on theCanadian side, and clear
(16:14):
evidence that the direction oftravel, at least for cocaine, is
not from Canada South, it'sfrom the US North, which is
interesting in the currentcontext of tariffs being imposed
for a failure to stop drugsgoing across the border.
It's pretty clear at least thedirection that drug is traveling
.
Adam Stirling (16:31):
All right, three and a half minutes left and it
says an appeal from BC decisionto force all mink farms to close
dismissed.
Michael Mulligan (16:41):
Yeah.
So if you're feeling bad as anAirbnb owner getting shut down,
you'd be feeling worse if youwere a mink farmer.
And the background of this caseis that it originated back in
the time of COVID, covid-19.
And in 2021, the provincialgovernment decided to change
regulations to force all minkfarms to close permanently, and
(17:05):
they did so on the basis ofsaying that there was evidence
about COVID spreading amongstmink and how they could get
respiratory viruses, and sothat's the end of the mink farms
in British Columbia, and itresulted in this piece of
litigation where the minkfarmers were arguing that that
government decision amounted toeither a malfeasance in public
(17:30):
office or a constructive takingof their property, for which you
might get compensation.
Now, the malfeasance in publicoffice argument is one which
courts have said.
That is an argument you canmake.
If you could establish that thegovernment had engaged in
activity which was egregious and, for example, intended to
(17:55):
injure a person or classes ofpersons Like if you had a
government decision just out of,let's say, political vengeance,
where you're trying to causeharm to somebody kind of like
the daily Trump decisions thatcould be reviewed.
But that kind of a review hasto be used with great caution
and restraint, because it'sintended, as the court said, to
deal with egregious intentionalmisconduct by the government,
(18:16):
not for maladministration,incompetence or bad judgment
which this may or may not havebeen, but that's not enough to
review it and then also rejectedthe idea that there could be
any hope of success on the basisof a constructive taking.
And the argument there is thatyou know, if you have your
property expropriated, takencompletely by the government,
(18:38):
there's a presumption that youwould get compensation for it.
It's not a constitutionalrequirement but it's a
presumption.
And the concept of constructivetaking comes from, amongst
other cases, a decision calledAnnapolis that the Supreme Court
of Canada dealt with a fewyears ago, where a municipality
didn't say I'm expropriatingyour, it was somebody who wanted
to develop a large piece ofproperty to put housing and
(19:00):
stuff on it, and instead theyjust put in conditions meaning
you couldn't use it for anythingelse other than really park
land, right.
They say, look, you can only.
And so yeah, I haven't takenthe property from you, I've just
made it impossible for you touse it such that the public can
now just use your property as apark right.
And so that was found to be, inthat case, a constructive taking
deserving of compensation, andthe novel argument that the mink
(19:24):
farmers wanted to make is thatthey were arguing that what was
going on here was not someeffort to control COVID-19.
They were alleging that thegovernment was making a
political decision, getting somepolitical benefit for that, and
that they had caved to theanti-fur lobby and public
opinion in banning mink farms,and so it was sort of an idea
that maybe they were gettingsome other kind of a benefit
(19:46):
like that a public, maybe apolitical benefit, something
else, some benefit for thegovernment by banning the
continued mink farming.
But the court found that thatwas so novel as an
interpretation of that.
It wasn't the equivalent of youknow, telling you you can only
build playgrounds and swings onyour property that you
(20:07):
previously wanted to buildhouses on, which amounted to
just taking it for public use.
That doesn't do it.
That might be like if thegovernment said we're taking all
Airbnbs and turning themimmediately into free homeless
shelters or something.
That might be an example of aconstructive taking of something
, but it didn't apply here.
(20:27):
So it's another example of howin Canada, unlike the US, we
don't have a protection forprivate property and so you can
have decisions like shuttingdown all Airbnbs or shutting
down mink farms, and unlessyou've got a particularly novel
argument, you're likely to justbe out of luck on both those
grounds.
So that's the latest from theCourt of Appeal with respect to
(20:49):
mink ranching.
Adam Stirling (20:50):
Michael Mulligan, with Mulligan Defence Lawyers,
legally speaking Second half ofour second hour every Thursday
here on CFAX.
Thank you, michael, pleasure asalways.
Thanks so much, always great tobe here.
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