April 24, 2025 • 21 mins
Privacy rights take center stage as the BC Court of Appeal delivers a powerful message to organizations handling sensitive information. When an ICBC employee sold policyholder data to criminal organizations, resulting in targeted arson and shooting attacks against numerous victims, the insurance giant fought tooth and nail to minimize compensation. The Court ultimately upheld a $15,000 award for each affected individual, establishing a crucial precedent that privacy violations cause significant harm even without visible damage.
The ruling recognizes that having your personal details sold to criminals creates genuine suffering, even when physical attacks don't materialize. This landmark decision enforces the principle that employers bear responsibility for their employees' actions when handling sensitive data. For anyone concerned about their digital privacy, this case represents a significant step toward protecting personal information in an increasingly connected world.
Meanwhile, the courts navigate the complex territory where art meets evidence. A murder trial in Surrey broke new ground by allowing expert testimony on drill rap—a subgenre where violent lyrics are often performative rather than autobiographical. The defence successfully argued that without understanding this cultural context, jurors might mistakenly interpret rap about violence as literal confessions. This raises fascinating questions about how we evaluate artistic expression in criminal proceedings and acknowledges potential racial biases in interpreting such content.
In Victoria, justice persisted despite a defendant's violent refusal to participate in his own trial. Charged with beating someone with their own wheelchair during a robbery, the accused fought with sheriffs and refused to enter the courtroom. The judge's ruling that this behaviour constituted "absconding" demonstrates how our legal system adapts to maintain functionality even when faced with extreme disruption.
These cases highlight how Canadian courts are evolving to address modern challenges while upholding fundamental principles of justice. Have you ever wondered how much your privacy is actually worth in the eyes of the law? This week's developments provide some compelling answers.
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 Defence
Lawyers.
It's Michael Mulligan, withLegally Speaking.
I believe that I broughtMichael up on the phone line.
Michael, are you able to hearus?
Michael Mulligan (00:12):
I sure can.
It's always great to be here, Iguess now virtually in
Esquimalt.
Adam Stirling (00:16):
You are, you are.
Michael Mulligan (00:17):
I'm relieved I didn't hear the sort of hum of
the phone line that I normallyhear when I bring you online
with this new crisp technology.
So my heart sank just for amoment there, but I'm relieved
to hear your voice.
Adam Stirling (00:35):
It's always good.
The downtown hum is gone.
It is, it is.
We have some interesting itemson the agenda this week.
I'm reading here it says the BCCourt of Appeal upholds a class
action award against ICBC.
And you've done a lot of workin terms of educating us how
personal injury claims work, howthe Insurance Corporation of
British Columbia used to work,versus how it works now.
What's the story here?
Michael Mulligan (00:51):
Well, this is not a good fact pattern.
This is a fact, the factpattern.
We've talked about it before ina different context, but ICBC
had an employee who for severalyears was selling private
information about policyholdersto a criminal organization and,
in particular, the criminalorganization was purchasing
information about policyholdersthat were associated with the
(01:14):
Justice Centre, which wouldtrain like police officers and
so on, and as a result of thisinformation being sold, the
criminal organization wound upengaging in I think it was 45
targeted arson and shootingattacks, going and lighting
people's houses on fire orfiring guns at them, and not all
(01:37):
of the people who had theirinformation sold by this ICBC
employee wound up being theactual victim of a physical
attack like arson on their houseor gunfire.
It was some 78 policyholdershad their information sold.
Only 45 of them had that kindof targeted attack occur.
Obviously terrible.
(01:58):
That all produced a classaction claim based on breaches
of the Privacy Act.
In British Columbia you have aPrivacy Act and that ultimately
got certified.
It was described as a reallyhard-fought legal action.
Icbc opposed it from the get-go, on every possible ground.
Ultimately, the claim wascertified and it was successful,
(02:23):
and the legal issue that thenarose, which just got answered
on an appeal.
The Court of Appeal was well,how much should the damages be
for the people who were notsubject to their house being lit
on fire, or there was no bullethole to be patched up right?
What is the damage, what is theharm and how should that be
(02:45):
compensated?
If you're just one of the 78people who didn't get, you know,
wasn't subject to a physicalattack, and one of the reasons
that's interesting from a legalperspective is that civil claims
of that kind have this conceptof what's called a tort.
Like a tort is like a civilwrong right, which is different
(03:06):
from like a criminal chargeright.
Some activity could be bothcriminal and be a civil tort,
but civil torts.
Examples of them would includethings like defamation, false
imprisonment, battery, thesekinds of terms, some of which
have a criminal overlap, but notalways.
Now, one of the things about atort and when you can sue for a
(03:27):
tort or a civil wrong isordinarily one of the things
that has to exist for there tobe a claim is there has to be
usually some kind of loss, likewhat were my damages right?
Because in a civil context whatyou can get is money, and if
there's no damages and no moneyto be awarded.
Well, there isn't really muchbasis for a claim right.
And so the Privacy Act inBritish Columbia, the very first
(03:52):
section of it, specifies thatit is a tort actionable without
proof of damage for a personwillfully and without a claim of
right to violate the privacy ofanother.
That's how the whole act starts.
So it creates this statutorytort of a breach of the Privacy
Act without proof of damages,which then raises the question
(04:13):
of well, what do I give you asthe judge?
Right, and here ICBC's eventualposition.
After they didn't succeed inpreventing the class action and
so on, their position was well,for people that weren't
firebombed or shot at, reallythey should only get a nominal
amount of money, and ICBC saidthat should be no more than $500
(04:35):
, just for having yourinformation sold to the gang by
the ICBC employee.
Now the trial judge didn'taccept that and ultimately the
trial judge awarded $15,000 inwhat are referred to as general
damages to all these people,just for the basis that, hey,
their information got stolen andsold to the gang, and that's
(04:55):
separate from the head of.
Damages could also be awarded toa subclass of people who
actually had their house lit onfire or whatever they might be
entitled to.
More like okay, I need to havemy garage door repaired or I
have to have the company comeand fill the bullet holes, but
ICBC didn't like the award of$15,000 to all 78 of these
(05:20):
people who had their informationstolen, and so that's the issue
that wound up going to theCourt of Appeal, and the Court
of Appeal looked at variousother circumstances in which
there are damages awarded fortorts and other related things.
Like they looked at, forexample, sometimes there are
damages awarded for things likea constitutional remedy right.
(05:42):
The Constitution provides thata judge can impose or provide a
remedy for a constitutionalbreach, like, for example, if
you had somebody whose rightswere violated in some way, one
option would be money incompensation.
And another thing the Court ofAppeal looked at and I should
(06:02):
say this is unusual there aresome torts that don't require
proof of a specific loss, likeone of the examples of that
would be the tort of trespassright.
And the idea there is that youknow, clearly, if somebody like
trespassed by you know doingdonuts on your lawn or something
in their car, yeah, that couldbe a trespass and you might
damage like I had to get mywhole lawn fixed right.
(06:25):
But what about the person who'sjust like creeping through your
garden?
Or somebody who just comes andlike pitches a tent in your
front yard or something right,and doesn't break anything?
Well, torts like that are sortof there are in a category where
there can be damages awardedeven if there is no actual
damage to point to.
Like you can't say like hey,you left tire tracks in my yard
(06:47):
when you drove across it andotherwise you can see why that
would be.
Otherwise, what does it mean tohave property if anyone can
just come and pitch a tent on itor come and hang out in your
living room without breakinganything?
That's not acceptable.
And so those were some of thethings that the Court of Appeal
looked at when deciding.
Well, how should this behandled?
For that category of people whohad their information stolen
(07:09):
but not actual harm, inadvertentor superficial, transient and
trivial it might be appropriateto award some small amount, like
500 bucks.
Like hey, try to keep thatinformation private, be more
careful, and that might beappropriate, for example, in
(07:31):
this digital world where we allhave all of our information
sitting on company servers andso on.
Right, you want to create someincentive to like do your best
to keep that reasonably secure.
Otherwise, if the amount thatthe damages that could be
awarded was $5 or something youknow, amazon or whoever would
have no particular incentive todo much to keep your credit card
(07:51):
or other data private.
So there has to be somethingfor that.
But the Court of Appeal pointedout and the trial judge had the
same view of it that when youhave a breach which is serious
like this one, deliberate and itwas done for an improper
purpose, like for financial gain, to sell your information to
criminals, something more than$500 is required.
(08:13):
And so the Court of Appeal didsay that well, you know there's
lots of deference to judges'decisions on these things and
did say that, well, $15,000might be towards the upper end
of the kind of damages thatcould be awarded for a serious
breach where there was nospecific harm that you could
point to, that there was nothingwrong with that award and it
(08:34):
was appropriate, and so it wasupheld.
And so it's a really importantdecision, because it's sort of
the seminal case in BC dealingwith what kind of damages can be
awarded when you can't point toa specific thing, and I, in my
view, that's good, becausethat's kind of the nature of
what a privacy considerationwould be right.
I mean, if I tell you thatsomebody's just sold your
(08:56):
personal information who doesn'tlike you to a gang, even if the
gang hasn't yet showed up atyour house, there's some damage
that's occurred there, right,you're probably going to be
tossing and turning and worriedabout that, and even if you're a
stoic person and not, the harmskind of occurred, right.
And so that's the message fromthe court of appeal.
And even though ICBC did itlooks like, just virtually
(09:18):
everything they could to avoidall of this, they are going to
eventually, after many years oflitigation and fighting it,
going to need to pay, and sohopefully they're the messages
to make sure that you keepinformation private.
And also the other underlyingpremise here is that employers
have some responsibility tosupervise their employees, and
(09:41):
so even though it was an ICBCemployee that was selling the
money to the gang, icbc is onthe hook for it, and so that's
the very latest from the Courtof Appeal on privacy and ICBC.
Adam Stirling (09:51):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking.
We'll continue on CFAX 1070right after this, legally
speaking on CFAX 1070 withMichael Mulligan from Mulligan
Defense Lawyers, michael up nexton our agenda.
I'm reading it says rap musicexpert qualified to testify at a
murder trial.
Michael Mulligan (10:10):
You don't get that a lot, do you I?
Adam Stirling (10:12):
was going to say a rap music expert.
Michael Mulligan (10:16):
So this is a trial.
It's a first degree murdertrial that's going on right now
in Surrey.
So it's live.
It's a this was a voir diredecision, so like a decision
about a legal point that's going.
It was just made in the midstof the trial and it's a really
interesting one in this sense.
It's a first degree murdercharge.
The person who's charged withmurder is in custody.
(10:38):
The person who's charged withmurder is in custody, and the
evidence that the Crown isrelying upon includes things
like rap songs that this personhas sung, including rap songs
that were recorded when he wasrapping, apparently on the phone
from jail, and then otherthings like social media posts
(11:02):
dealing with this person's rapmusic.
And so, first of all, there wasa previous decision, which the
judge is cryptically referringto here in order to, I suppose,
ensure the trial is fair becauseit's not over.
It's a jury trial, but thejudge made a decision that he
ruled evidence that had to dowith quote.
A decision that he ruledevidence that had to do with
(11:24):
quote discreditable conduct wasgoing to be admissible at the
behest of the crown, includingthese things, like these jail
phone calls and rap lyrics.
Now, that, first of all, isunusual, generally discreditable
conduct evidence isn't reallythe basis of a criminal charge.
Right, we try people forspecific crimes, not being a bad
person generally, but it soundslike here it might have had
(11:46):
that element, but also, it wouldappear, the Crown's relying
upon things this guy waswrapping to be somehow
admissions of the murder.
Now the defense has respondedto that by an application to
call a fellow who is describedas an assistant professor of
race and media at the Universityof South Carolina in the School
of Journalism and MassCommunication, about this
(12:16):
particular kind of what'sdescribed as drill music, a
subgenre of rap.
Music which was described asdrill rap stemming from.
It's a subgenre of gangster rapwhich has its origins in
Chicago, but it's also presentin other places Toronto and
other places in Canada.
(12:42):
And so first of all, in acriminal trial, the starting
point is that people can't justshow up and offer their opinions
about things right.
Witnesses generally are provento show up and testify about
things they saw or did likefacts right, and what to make of
those facts is generally anissue for the judge or the jury,
whoever the trier of fact right.
Issue for the judge or the jury, whoever the trier of fact
(13:03):
right.
But we have an exception tothat, where we allow expert
evidence which really is like anopinion.
You know it's an opinion about,well, what does this mean,
right?
What does this you know, dna inthe blood mean, or something,
right?
And in order to do that, theparty wanting to call the expert
, they have the burden ofshowing that that should be
permitted, because presumptivelyyou can't call people to offer
(13:23):
their just opinion.
And so there are a series ofthings that they would have to
establish First of all, that theevidence is relevant to an
issue in the trial, and that oneof the next critical parts here
is it's got to be necessary toassist the trier effect.
And so they would look atsomething like is this something
that sort of ordinary peoplecould sort out on their own
right, in which case you don'tneed an expert to help you along
(13:45):
?
That's kind of like that's whywe have a jury, you know.
But is it something that's kindof specialized?
Without expert assistance, youknow, ordinary person might not
be able to tell you the you knowhistory and relevance and so on
of this kind of music and howthat might relate to what these
lyrics were.
And then there's also an issueabout whether there's any other
(14:07):
exclusionary rule.
Is it particularly prejudicial?
Is any potential prejudice moresignificant than the value it
might bring?
And then, finally, is this aqualified person?
And so the Crown was opposingthis professor testifying, and
so the judge had to hearevidence about what he would
have to say and why and how thismight relate to what was going
on there.
(14:27):
And so to that end, the defenseprovided kind of a will say
here's what he would be saying,and in fact he testified on the
voir dire to be asked questionsabout that dear to be asked
questions about that.
And here what the professorwould be testifying about
included things like this typeof music and what's included in
(14:48):
it in terms of things like thelyrics in this kind of drill rap
are often, for example, in theprofessor's view, involve things
which are expressed in thefirst person, even if the
performer might not haveexperienced them themselves.
And also that lyrics ofteninvolve in that kind of music
(15:10):
the commission of criminalactivity, and sometimes they're
compilations or fabrications,not always real.
And the professor's view wasthat people involved in that
genre are often involved in whatthe professor referred to as
clout chasing, which describedas a defined as a thirst for
(15:30):
attention, manifesting itself inlyrics or drill or gangster rap
, being self aggrandizing andoften trying to portray violence
and so on as part of theirpersona, which can not only be
in the music but on social mediarelating to it.
Really interesting in thecontext of this particular
allegation, right, and so theessence of what the professor
(15:52):
looks like has to say is peoplethat are drill rap artists will
put on a persona in the effortof clout chasing, claiming in
their lyrics that they were theperson involved in often violent
criminal activity, when in factthey may not have been just
(16:13):
part of this genre.
Adam Stirling (16:14):
Yeah.
Michael Mulligan (16:15):
And the professor also pointed out that
in their view there were someracial elements to it in the
sense that in the professor alsopointed out that in their view
there were some racial elementsto it in the sense that in the
professor's view, when some, forexample, filmmakers, might be
making films about violentactivity, it's not assumed that
they were in fact involved inthat themselves.
You know what I mean.
Like people don't think, oh myGod, quentin Tarantino must have
(16:37):
been, you know, murderingsomebody in a car, right.
And so there was also thatelement of sort of whether
there's some sort of racialelement to how those kind of
narratives are portrayed.
And so that's the reallyinteresting fact pattern the
judge had to sort out.
And ultimately the judgeconcluded that it is appropriate
to call, to allow the defenseto call this evidence that
(17:01):
without that kind of expertinterpretation of, like what
people who are real rap artistsdo, with the fact that not
everything they say they'redoing in fact that they do, a
jury might be left with theimpression that if somebody's
rapping about killing somebody,they might literally mean that
they killed somebody.
That may not be a safeconclusion, and particularly
(17:22):
important where they in factpart of what's going on here is
in fact rapping on the prisonphone.
So really interesting.
That's the decision.
The trial will now get backunderway and the jury will get
to hear the evidence from DrEvans about drill rap and what
the jury ought to make of thatin terms of the rapping on the
(17:45):
prison phone and whethersomebody saying that they're
killing somebody really meansthey killed somebody or whether
that just means the person'sinvolved in an effort to clout
chase, to get more street credin the gangster drill rap
subgenre, including on theirsocial media, and so we'll have
to keep an eye on what happensin Surrey.
Get more street cred in thegangster drill rap subgenre,
including on their social media,and so we'll have to keep an
(18:07):
eye on what happens in Surreyand whether the rapper in fact
winds up in prison or whether hewinds up on some billboard hit
chart somewhere.
So that's the latest on thegangster drill rap expert
evidence in a murder trial goingon right now in BC.
Adam Stirling (18:17):
All right, michael Mulligan.
You and I have 90 seconds left.
How shall we spend them?
Michael Mulligan (18:22):
Sure.
Final case I think we summed upbriefly it's a Victoria case.
It's a really awful one.
It was a man who was chargedwith robbery for robbing and
beating a man with his ownwheelchair and then robbing him
of his guitar and various otherthings.
So that trial recently concluded, and the issue in the trial was
(18:44):
identification.
And the reason there was anidentification issue is, even
though there was a video of thebeating and robbery and pictures
taken of the person, the personwho was robbed could not
identify the person who did it,nor could a witness who observed
it, and so the case was goingto trial.
On an ID issue, things startedto go off the rails, though.
The accused was who was held incustody not surprisingly, I
(19:05):
guess, given that fact patternTest showed up quietly and sat
there on day one, but on day two, uh, when there was some delay
and the complainant showing upto testify refused to come back
into the courtroom, becameviolent, was fighting with the
sheriffs, the sheriffs weretrying to wrestle him back in
there and the man was likespitting on them and terrible,
right yeah you have somesympathy for the sheriffsiffs,
(19:29):
and so the judge had to say well, what do we do with this?
And first of all they triedputting the man in a room with a
video so he could watch but notdisrupt the court proceedings.
But the sheriffs were concernedthat he was going to use the
electronic equipment to harmthem or potentially someone else
, and so that didn't work out.
And so ultimately what thejudge did is she used a
provision of the criminal code475 that deals with the idea of
(19:53):
a person absconding from theirtrial, and usually the absconder
is somebody like running away.
But this guy was in thecourthouse just fighting, not
come back into the courtroom.
Ultimately she found that didconstitute absconding.
And if you do abscond in thatway, you've given up your right
to be present at your trial,Because the starting point is
you've got a right to be there,it's your trial.
(20:13):
But if you were doing thatyou've kind of waived that.
The judge had to then sort outwhether to draw an adverse
inference from the fact of theabsconding, Because that's
permitted in a subsection of theprovision dealing with
absconding.
If you run away from your trial, the judge could draw an
inference that it's more likelyyou committed the crime.
She declined to do that, butthen, after reviewing all the
(20:35):
evidence, including evidencethat this man was found with the
stolen guitar wearing adistinctive jacket, a short time
after the robbery occurred, shewas well satisfied that this
was the man who committed therobbery, despite the fact that
the man couldn't identify him.
And so, despite the abscondingspitting, fighting and not
coming back into the courtroom,he's been found guilty, and so
(20:57):
now it'll be on to the judge tosort out what sentence do you
impose for the robbery andbeating of a man with his own
wheelchair?
And so I imagine that's notgoing to go well for this fellow
.
But that's the latest inVictoria in the Supreme Court
for the absconding robber.
Adam Stirling (21:11):
Michael Mulligan.
Second half of our second houron a Thursday, legally speaking
Pleasure, as always.
Michael Mulligan (21:16):
Thanks so much .
Always great to be here.
Hope you have a great day andenjoy the new digs.
Adam Stirling (21:20):
All right, thanks so much.
We'll talk soon.
It's time for our regular segment, joined as
always by barrister andsolicitor with Mulligan Defence
Lawyers.
It's Michael Mulligan, withLegally Speaking.
I believe that I broughtMichael up on the phone line.
Michael, are you able to hearus?
Michael Mulligan (00:12):
I sure can.
It's always great to be here, Iguess now virtually in
Esquimalt.
Adam Stirling (00:16):
You are, you are.
Michael Mulligan (00:17):
I'm relieved I didn't hear the sort of hum of
the phone line that I normallyhear when I bring you online
with this new crisp technology.
So my heart sank just for amoment there, but I'm relieved
to hear your voice.
Adam Stirling (00:35):
It's always good.
The downtown hum is gone.
It is, it is.
We have some interesting itemson the agenda this week.
I'm reading here it says the BCCourt of Appeal upholds a class
action award against ICBC.
And you've done a lot of workin terms of educating us how
personal injury claims work, howthe Insurance Corporation of
British Columbia used to work,versus how it works now.
What's the story here?
Michael Mulligan (00:51):
Well, this is not a good fact pattern.
This is a fact, the factpattern.
We've talked about it before ina different context, but ICBC
had an employee who for severalyears was selling private
information about policyholdersto a criminal organization and,
in particular, the criminalorganization was purchasing
information about policyholdersthat were associated with the
(01:14):
Justice Centre, which wouldtrain like police officers and
so on, and as a result of thisinformation being sold, the
criminal organization wound upengaging in I think it was 45
targeted arson and shootingattacks, going and lighting
people's houses on fire orfiring guns at them, and not all
(01:37):
of the people who had theirinformation sold by this ICBC
employee wound up being theactual victim of a physical
attack like arson on their houseor gunfire.
It was some 78 policyholdershad their information sold.
Only 45 of them had that kindof targeted attack occur.
Obviously terrible.
(01:58):
That all produced a classaction claim based on breaches
of the Privacy Act.
In British Columbia you have aPrivacy Act and that ultimately
got certified.
It was described as a reallyhard-fought legal action.
Icbc opposed it from the get-go, on every possible ground.
Ultimately, the claim wascertified and it was successful,
(02:23):
and the legal issue that thenarose, which just got answered
on an appeal.
The Court of Appeal was well,how much should the damages be
for the people who were notsubject to their house being lit
on fire, or there was no bullethole to be patched up right?
What is the damage, what is theharm and how should that be
(02:45):
compensated?
If you're just one of the 78people who didn't get, you know,
wasn't subject to a physicalattack, and one of the reasons
that's interesting from a legalperspective is that civil claims
of that kind have this conceptof what's called a tort.
Like a tort is like a civilwrong right, which is different
(03:06):
from like a criminal chargeright.
Some activity could be bothcriminal and be a civil tort,
but civil torts.
Examples of them would includethings like defamation, false
imprisonment, battery, thesekinds of terms, some of which
have a criminal overlap, but notalways.
Now, one of the things about atort and when you can sue for a
(03:27):
tort or a civil wrong isordinarily one of the things
that has to exist for there tobe a claim is there has to be
usually some kind of loss, likewhat were my damages right?
Because in a civil context whatyou can get is money, and if
there's no damages and no moneyto be awarded.
Well, there isn't really muchbasis for a claim right.
And so the Privacy Act inBritish Columbia, the very first
(03:52):
section of it, specifies thatit is a tort actionable without
proof of damage for a personwillfully and without a claim of
right to violate the privacy ofanother.
That's how the whole act starts.
So it creates this statutorytort of a breach of the Privacy
Act without proof of damages,which then raises the question
(04:13):
of well, what do I give you asthe judge?
Right, and here ICBC's eventualposition.
After they didn't succeed inpreventing the class action and
so on, their position was well,for people that weren't
firebombed or shot at, reallythey should only get a nominal
amount of money, and ICBC saidthat should be no more than $500
(04:35):
, just for having yourinformation sold to the gang by
the ICBC employee.
Now the trial judge didn'taccept that and ultimately the
trial judge awarded $15,000 inwhat are referred to as general
damages to all these people,just for the basis that, hey,
their information got stolen andsold to the gang, and that's
(04:55):
separate from the head of.
Damages could also be awarded toa subclass of people who
actually had their house lit onfire or whatever they might be
entitled to.
More like okay, I need to havemy garage door repaired or I
have to have the company comeand fill the bullet holes, but
ICBC didn't like the award of$15,000 to all 78 of these
(05:20):
people who had their informationstolen, and so that's the issue
that wound up going to theCourt of Appeal, and the Court
of Appeal looked at variousother circumstances in which
there are damages awarded fortorts and other related things.
Like they looked at, forexample, sometimes there are
damages awarded for things likea constitutional remedy right.
(05:42):
The Constitution provides thata judge can impose or provide a
remedy for a constitutionalbreach, like, for example, if
you had somebody whose rightswere violated in some way, one
option would be money incompensation.
And another thing the Court ofAppeal looked at and I should
(06:02):
say this is unusual there aresome torts that don't require
proof of a specific loss, likeone of the examples of that
would be the tort of trespassright.
And the idea there is that youknow, clearly, if somebody like
trespassed by you know doingdonuts on your lawn or something
in their car, yeah, that couldbe a trespass and you might
damage like I had to get mywhole lawn fixed right.
(06:25):
But what about the person who'sjust like creeping through your
garden?
Or somebody who just comes andlike pitches a tent in your
front yard or something right,and doesn't break anything?
Well, torts like that are sortof there are in a category where
there can be damages awardedeven if there is no actual
damage to point to.
Like you can't say like hey,you left tire tracks in my yard
(06:47):
when you drove across it andotherwise you can see why that
would be.
Otherwise, what does it mean tohave property if anyone can
just come and pitch a tent on itor come and hang out in your
living room without breakinganything?
That's not acceptable.
And so those were some of thethings that the Court of Appeal
looked at when deciding.
Well, how should this behandled?
For that category of people whohad their information stolen
(07:09):
but not actual harm, inadvertentor superficial, transient and
trivial it might be appropriateto award some small amount, like
500 bucks.
Like hey, try to keep thatinformation private, be more
careful, and that might beappropriate, for example, in
(07:31):
this digital world where we allhave all of our information
sitting on company servers andso on.
Right, you want to create someincentive to like do your best
to keep that reasonably secure.
Otherwise, if the amount thatthe damages that could be
awarded was $5 or something youknow, amazon or whoever would
have no particular incentive todo much to keep your credit card
(07:51):
or other data private.
So there has to be somethingfor that.
But the Court of Appeal pointedout and the trial judge had the
same view of it that when youhave a breach which is serious
like this one, deliberate and itwas done for an improper
purpose, like for financial gain, to sell your information to
criminals, something more than$500 is required.
(08:13):
And so the Court of Appeal didsay that well, you know there's
lots of deference to judges'decisions on these things and
did say that, well, $15,000might be towards the upper end
of the kind of damages thatcould be awarded for a serious
breach where there was nospecific harm that you could
point to, that there was nothingwrong with that award and it
(08:34):
was appropriate, and so it wasupheld.
And so it's a really importantdecision, because it's sort of
the seminal case in BC dealingwith what kind of damages can be
awarded when you can't point toa specific thing, and I, in my
view, that's good, becausethat's kind of the nature of
what a privacy considerationwould be right.
I mean, if I tell you thatsomebody's just sold your
(08:56):
personal information who doesn'tlike you to a gang, even if the
gang hasn't yet showed up atyour house, there's some damage
that's occurred there, right,you're probably going to be
tossing and turning and worriedabout that, and even if you're a
stoic person and not, the harmskind of occurred, right.
And so that's the message fromthe court of appeal.
And even though ICBC did itlooks like, just virtually
(09:18):
everything they could to avoidall of this, they are going to
eventually, after many years oflitigation and fighting it,
going to need to pay, and sohopefully they're the messages
to make sure that you keepinformation private.
And also the other underlyingpremise here is that employers
have some responsibility tosupervise their employees, and
(09:41):
so even though it was an ICBCemployee that was selling the
money to the gang, icbc is onthe hook for it, and so that's
the very latest from the Courtof Appeal on privacy and ICBC.
Adam Stirling (09:51):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking.
We'll continue on CFAX 1070right after this, legally
speaking on CFAX 1070 withMichael Mulligan from Mulligan
Defense Lawyers, michael up nexton our agenda.
I'm reading it says rap musicexpert qualified to testify at a
murder trial.
Michael Mulligan (10:10):
You don't get that a lot, do you I?
Adam Stirling (10:12):
was going to say a rap music expert.
Michael Mulligan (10:16):
So this is a trial.
It's a first degree murdertrial that's going on right now
in Surrey.
So it's live.
It's a this was a voir diredecision, so like a decision
about a legal point that's going.
It was just made in the midstof the trial and it's a really
interesting one in this sense.
It's a first degree murdercharge.
The person who's charged withmurder is in custody.
(10:38):
The person who's charged withmurder is in custody, and the
evidence that the Crown isrelying upon includes things
like rap songs that this personhas sung, including rap songs
that were recorded when he wasrapping, apparently on the phone
from jail, and then otherthings like social media posts
(11:02):
dealing with this person's rapmusic.
And so, first of all, there wasa previous decision, which the
judge is cryptically referringto here in order to, I suppose,
ensure the trial is fair becauseit's not over.
It's a jury trial, but thejudge made a decision that he
ruled evidence that had to dowith quote.
A decision that he ruledevidence that had to do with
(11:24):
quote discreditable conduct wasgoing to be admissible at the
behest of the crown, includingthese things, like these jail
phone calls and rap lyrics.
Now, that, first of all, isunusual, generally discreditable
conduct evidence isn't reallythe basis of a criminal charge.
Right, we try people forspecific crimes, not being a bad
person generally, but it soundslike here it might have had
(11:46):
that element, but also, it wouldappear, the Crown's relying
upon things this guy waswrapping to be somehow
admissions of the murder.
Now the defense has respondedto that by an application to
call a fellow who is describedas an assistant professor of
race and media at the Universityof South Carolina in the School
of Journalism and MassCommunication, about this
(12:16):
particular kind of what'sdescribed as drill music, a
subgenre of rap.
Music which was described asdrill rap stemming from.
It's a subgenre of gangster rapwhich has its origins in
Chicago, but it's also presentin other places Toronto and
other places in Canada.
(12:42):
And so first of all, in acriminal trial, the starting
point is that people can't justshow up and offer their opinions
about things right.
Witnesses generally are provento show up and testify about
things they saw or did likefacts right, and what to make of
those facts is generally anissue for the judge or the jury,
whoever the trier of fact right.
Issue for the judge or the jury, whoever the trier of fact
(13:03):
right.
But we have an exception tothat, where we allow expert
evidence which really is like anopinion.
You know it's an opinion about,well, what does this mean,
right?
What does this you know, dna inthe blood mean, or something,
right?
And in order to do that, theparty wanting to call the expert
, they have the burden ofshowing that that should be
permitted, because presumptivelyyou can't call people to offer
(13:23):
their just opinion.
And so there are a series ofthings that they would have to
establish First of all, that theevidence is relevant to an
issue in the trial, and that oneof the next critical parts here
is it's got to be necessary toassist the trier effect.
And so they would look atsomething like is this something
that sort of ordinary peoplecould sort out on their own
right, in which case you don'tneed an expert to help you along
(13:45):
?
That's kind of like that's whywe have a jury, you know.
But is it something that's kindof specialized?
Without expert assistance, youknow, ordinary person might not
be able to tell you the you knowhistory and relevance and so on
of this kind of music and howthat might relate to what these
lyrics were.
And then there's also an issueabout whether there's any other
(14:07):
exclusionary rule.
Is it particularly prejudicial?
Is any potential prejudice moresignificant than the value it
might bring?
And then, finally, is this aqualified person?
And so the Crown was opposingthis professor testifying, and
so the judge had to hearevidence about what he would
have to say and why and how thismight relate to what was going
on there.
(14:27):
And so to that end, the defenseprovided kind of a will say
here's what he would be saying,and in fact he testified on the
voir dire to be asked questionsabout that dear to be asked
questions about that.
And here what the professorwould be testifying about
included things like this typeof music and what's included in
(14:48):
it in terms of things like thelyrics in this kind of drill rap
are often, for example, in theprofessor's view, involve things
which are expressed in thefirst person, even if the
performer might not haveexperienced them themselves.
And also that lyrics ofteninvolve in that kind of music
(15:10):
the commission of criminalactivity, and sometimes they're
compilations or fabrications,not always real.
And the professor's view wasthat people involved in that
genre are often involved in whatthe professor referred to as
clout chasing, which describedas a defined as a thirst for
(15:30):
attention, manifesting itself inlyrics or drill or gangster rap
, being self aggrandizing andoften trying to portray violence
and so on as part of theirpersona, which can not only be
in the music but on social mediarelating to it.
Really interesting in thecontext of this particular
allegation, right, and so theessence of what the professor
(15:52):
looks like has to say is peoplethat are drill rap artists will
put on a persona in the effortof clout chasing, claiming in
their lyrics that they were theperson involved in often violent
criminal activity, when in factthey may not have been just
(16:13):
part of this genre.
Adam Stirling (16:14):
Yeah.
Michael Mulligan (16:15):
And the professor also pointed out that
in their view there were someracial elements to it in the
sense that in the professor alsopointed out that in their view
there were some racial elementsto it in the sense that in the
professor's view, when some, forexample, filmmakers, might be
making films about violentactivity, it's not assumed that
they were in fact involved inthat themselves.
You know what I mean.
Like people don't think, oh myGod, quentin Tarantino must have
(16:37):
been, you know, murderingsomebody in a car, right.
And so there was also thatelement of sort of whether
there's some sort of racialelement to how those kind of
narratives are portrayed.
And so that's the reallyinteresting fact pattern the
judge had to sort out.
And ultimately the judgeconcluded that it is appropriate
to call, to allow the defenseto call this evidence that
(17:01):
without that kind of expertinterpretation of, like what
people who are real rap artistsdo, with the fact that not
everything they say they'redoing in fact that they do, a
jury might be left with theimpression that if somebody's
rapping about killing somebody,they might literally mean that
they killed somebody.
That may not be a safeconclusion, and particularly
(17:22):
important where they in factpart of what's going on here is
in fact rapping on the prisonphone.
So really interesting.
That's the decision.
The trial will now get backunderway and the jury will get
to hear the evidence from DrEvans about drill rap and what
the jury ought to make of thatin terms of the rapping on the
(17:45):
prison phone and whethersomebody saying that they're
killing somebody really meansthey killed somebody or whether
that just means the person'sinvolved in an effort to clout
chase, to get more street credin the gangster drill rap
subgenre, including on theirsocial media, and so we'll have
to keep an eye on what happensin Surrey.
Get more street cred in thegangster drill rap subgenre,
including on their social media,and so we'll have to keep an
(18:07):
eye on what happens in Surreyand whether the rapper in fact
winds up in prison or whether hewinds up on some billboard hit
chart somewhere.
So that's the latest on thegangster drill rap expert
evidence in a murder trial goingon right now in BC.
Adam Stirling (18:17):
All right, michael Mulligan.
You and I have 90 seconds left.
How shall we spend them?
Michael Mulligan (18:22):
Sure.
Final case I think we summed upbriefly it's a Victoria case.
It's a really awful one.
It was a man who was chargedwith robbery for robbing and
beating a man with his ownwheelchair and then robbing him
of his guitar and various otherthings.
So that trial recently concluded, and the issue in the trial was
(18:44):
identification.
And the reason there was anidentification issue is, even
though there was a video of thebeating and robbery and pictures
taken of the person, the personwho was robbed could not
identify the person who did it,nor could a witness who observed
it, and so the case was goingto trial.
On an ID issue, things startedto go off the rails, though.
The accused was who was held incustody not surprisingly, I
(19:05):
guess, given that fact patternTest showed up quietly and sat
there on day one, but on day two, uh, when there was some delay
and the complainant showing upto testify refused to come back
into the courtroom, becameviolent, was fighting with the
sheriffs, the sheriffs weretrying to wrestle him back in
there and the man was likespitting on them and terrible,
right yeah you have somesympathy for the sheriffsiffs,
(19:29):
and so the judge had to say well, what do we do with this?
And first of all they triedputting the man in a room with a
video so he could watch but notdisrupt the court proceedings.
But the sheriffs were concernedthat he was going to use the
electronic equipment to harmthem or potentially someone else
, and so that didn't work out.
And so ultimately what thejudge did is she used a
provision of the criminal code475 that deals with the idea of
(19:53):
a person absconding from theirtrial, and usually the absconder
is somebody like running away.
But this guy was in thecourthouse just fighting, not
come back into the courtroom.
Ultimately she found that didconstitute absconding.
And if you do abscond in thatway, you've given up your right
to be present at your trial,Because the starting point is
you've got a right to be there,it's your trial.
(20:13):
But if you were doing thatyou've kind of waived that.
The judge had to then sort outwhether to draw an adverse
inference from the fact of theabsconding, Because that's
permitted in a subsection of theprovision dealing with
absconding.
If you run away from your trial, the judge could draw an
inference that it's more likelyyou committed the crime.
She declined to do that, butthen, after reviewing all the
(20:35):
evidence, including evidencethat this man was found with the
stolen guitar wearing adistinctive jacket, a short time
after the robbery occurred, shewas well satisfied that this
was the man who committed therobbery, despite the fact that
the man couldn't identify him.
And so, despite the abscondingspitting, fighting and not
coming back into the courtroom,he's been found guilty, and so
(20:57):
now it'll be on to the judge tosort out what sentence do you
impose for the robbery andbeating of a man with his own
wheelchair?
And so I imagine that's notgoing to go well for this fellow
.
But that's the latest inVictoria in the Supreme Court
for the absconding robber.
Adam Stirling (21:11):
Michael Mulligan.
Second half of our second houron a Thursday, legally speaking
Pleasure, as always.
Michael Mulligan (21:16):
Thanks so much .
Always great to be here.
Hope you have a great day andenjoy the new digs.
Adam Stirling (21:20):
All right, thanks so much.
We'll talk soon.
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