July 17, 2025 • 22 mins
The boundaries of judicial authority in Canada have been redrawn by a groundbreaking Supreme Court ruling that empowers judges to conduct murder trials without juries—even when prosecutors object. This remarkable case emerged from the early pandemic when COVID-19 made traditional jury trials nearly impossible. A defendant, unwilling to face further delay, requested a judge-alone trial, but prosecutors refused consent. The Supreme Court ultimately sided with the trial judge who proceeded anyway, establishing that protecting a defendant's right to timely justice can override prosecutorial preferences.
This ruling fundamentally reshapes our understanding of what falls within a prosecutor's untouchable "core discretion" versus what judges can override to protect Charter rights. Legal scholars are now watching closely to see how this precedent might extend to other prosecutorial decisions previously considered untouchable.
Property rights received equal attention through a fascinating case where a regional district built what the court bluntly called an "ugly dam" on part of a 157-acre ranch property in the Kootenays. Though only a small portion of land was taken, it transformed a pristine natural lake into an artificial-looking reservoir with an unsightly rocky dam. The court awarded the owner $340,080 in compensation, reinforcing the principle that the government must pay not just for land taken but for how the taking diminishes a property's overall market value.
Most controversial is the Nanaimo murder case, challenging Canada's mandatory 25-year parole ineligibility period for first-degree murder. A man who brutally killed someone with a baseball bat argued that, without the now-eliminated "faint hope clause" (which once allowed parole reviews after 15 years), this sentence constitutes cruel and unusual punishment. Though the judge found the elimination of this clause unconstitutional, the offender still received the full 25-year parole ineligibility due to the brutality of his crime.
These cases collectively demonstrate how our legal system constantly balances competing interests—public safety against individual rights, government needs against property ownership, and societal punishment against constitutional protections against cruelty.
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 on CFAX 1070.
Good afternoon, michael.
How are we doing?
Michael Mulligan (00:11):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:13):
Some interesting items on the agenda this week.
I'm reading the first one.
It says the Supreme Court ofCanada finds that a trial judge
had the authority to conduct amurder trial without a jury and
without the consent of the Crown.
What happened here?
Michael Mulligan (00:28):
So there are some offenses in the criminal
code that are required to bejury trials unless both the
defense and the Crown agree toallow just a judge to try the
case, and murder is one of thoseoffenses, and the particular
case came from June of 2020.
(00:50):
So what was going on in June of2020?
Covid, no vaccine, early daysof COVID, and so this man was
facing a murder charge and hewished to not wait for there to
be conditions where you couldhave a jury together.
We did try various things.
We in the system tried variousthings to try to make those
(01:12):
possible, particularly in caseswhere people were in jail
waiting for their trial.
Things were tried like usingtwo courtrooms and connecting up
the two courtrooms by video andspreading the jurors out all
over the courtroom with a bigscreen so they could watch what
was going on next door.
But, as you can probablyimagine from that description,
(01:32):
that was not easy, and in theearly days, of course, people
were still wiping down groceriesand didn't know what was going
on, right, and so in this case,the accused said look, I just
want to trial the judge alone,let's get going.
And Crown Counsel refused toconsent to it, which I suppose
is one of those things likeperhaps bad judgment might make
(01:53):
unfavorable law from theperspective of the person who's
acting at least on its face, ina perhaps unreasonable way.
And so the other thing to knowis that there are some decisions
in a criminal prosecution thatare considered to be sort of
core prosecutorial exercises ofdiscretion, and those include
(02:27):
things like whether the Crown ischarging somebody at all, or
what offense are they chargingthe person with, or you know
other just core elements thatthe prosecution gets to decide
that a judge is not permitted tointerfere with unless it's
determined to be what's calledan abusive process, which is a
pretty high threshold.
Do you know what I mean?
If somebody said, look, if itbecame clear that Crown was, I
don't know, charging somebodywith murder because they really
didn't like them as a badneighbor or something right, you
say, well, hold on, that's just, we can interfere with that,
(02:48):
but barring a very high standard, it's hands off.
Crown gets to decide that.
So here the trial proceeded withthe judge alone, and the judge
acquitted the man of murderconvicting instead of
manslaughter, and so the Crownappealed that decision and it
got all the way to the SupremeCourt of Canada, who just
rendered their decision and theyfound that no, the judge was
(03:09):
entitled to do what they didperiod of time, and here they
weren't past the threshold.
But there was a real chancethat if they didn't get on with
this thing the case could windup being sold, it couldn't be
prosecuted at all.
(03:30):
And judges have, under Section24.1 of the Charter, broad
discretion to sort of, you know,come up with remedies to avoid
those kinds of problems.
And that's what the judge didhere.
He said look, I'm ordering thisthing, go ahead, I don't care,
it's just me.
I don't care that the Crown isnot consenting because otherwise
(03:52):
the person is going to have abreach of their right to a trial
within a reasonable period oftime.
Let's go.
And so eventually the SupremeCourt of Canada has now found
that that choice, the choicewhether to consent to allowing
just a judge as opposed to judgeand jury in a murder case, the
Supreme Court of Canada hasruled that that's not part of
that core jurisdiction of theCrown, where the judges can't
(04:14):
interfere with it unless it's anabusive process.
And indeed judges do haveauthority to overrule this kind
of decision by the Crown inorder to, in this case, avoid,
for example, an unreasonabledelay in the trial, and so it's
both interesting on theparticular narrow question about
whether that decision is partof that core prosecutorial
(04:37):
discretion, but it may also leadto other sort of choices like
that being potentially renewableby judges without having to
find that it's such a bad thingthat it's an abusive process.
So interesting both in terms ofthe particular case and the
practical remedy granted by thejudge, and interesting as well
(04:58):
potentially in terms of how thismight impact other sort of
decisions that a judge mightthink need to be remedied.
So very interesting case and Ithink perhaps one of the
clearest examples I've seenlately of how potentially making
a dubious, taking a dubiousposition causes everyone
involved to have to carefullyscrutinize it.
(05:18):
And in this case it's madeclear that that decision is not
part of that core discretion andjudges can interfere with it
where necessary to avoid thingslike an unreasonable delay in
the trial.
Adam Stirling (05:30):
I'm reading this next one.
It says compensation for aregional district building an
ugly dam on a property.
Am I reading that correctly?
Michael Mulligan (05:40):
You're reading that right.
And so this is an interestingcase that has other, broader
implications as well, and it wasa hearing dealing with Section
40 of the Expropriation Act.
And so there's authority forgovernment to expropriate
private property for, you know,public use right, that's sort of
(06:01):
people would understand thatright, if you need to put a road
through or something a persondoesn't want to sell their
property, they can just take it.
But they have to pay faircompensation for it and if there
isn't an agreement, that can goto court, the judge will decide
what that is.
And that particular section Ireferred to, section 40 of the
act that deals with that dealswith the concept of partial
(06:23):
takings, right, it's that theydidn't take the whole property.
This particular property was alarge piece of property up in
the Kootenays, so the 157 acreswas described as like a
ranch-type property that hadquite an attractive lake on the
property.
It's also an interesting casebecause the judge included not
only the written reasons butpictures of things like what on
the property.
It's also an interesting casebecause the judge included not
(06:44):
only written reasons butpictures of things like what did
the property look like before,right, which gives a lot of
meaning to the decision, andthat particular section dealing
with partial takings deals withthis concept of an injurious
affection to the property.
And so in this case it was thedam that was built and it turned
(07:06):
what you know.
It was only a small part ofthis 157-acre property, but a
large part of the value of theproperty was this beautiful lake
that was almost all within theproperty and it turned it from
sort of a natural-looking laketo this thing, with a rather
large rocky dam at the end of itthat looks all man-made.
(07:26):
And so the property owner hadan expert report from an
appraiser that said that theeffect of that change was to
reduce the property value by$340,080.
That's pretty precise, but thatwas the result.
And the idea there is that ifyou take just part of a property
(07:47):
but it has the effect ofreducing its market value, what
you're entitled to is the changeto the market value.
So, like here's an example of,maybe in a smaller property.
Let's say you own a house inthe city of Victoria, right, and
they decide they want to put ina bus stop size safe injection
site on the corner of yourproperty.
(08:08):
And so they come andexpropriate a hundred square
meters corner of your propertyand install a safe injection
outdoor site on the corner ofyour property and they say, well
, we just want to pay you forthe percentage of your land that
we took there.
To put that in right, indeed,one way to calculate.
That might be well, what's thetotal value of your land that we
took there?
To put that in right, indeed,one way to calculate, that might
be well, what's the total valueof the land?
And let's take the 10% they cutoff to make the bus shelter
(08:29):
size, safe injection outdoorsite in the corner of your
property.
But that's not really going tocapture the impact that just
added your property value, right, it's not fair to just say
we're going to give you 10% ofthe assessed value of your land.
We've got to take into accountwhat's the real impact that's
having here, and so that's whythe judge in this case took the
(08:50):
time to put in the judgmentthings like well, here's a
picture, here's what the viewsof the lake look like.
Now, here's what it looks like,right, and that gives real
meaning to the opinion of theappraiser who said no, this is
seriously diminishing theopinion of the appraiser who
said no, this is seriouslydiminishing the value of it.
There was also an interestingthing that the regional district
part of their repeatedsubmission, according to the
(09:10):
judge suggested that if youbuilt a house in just the right
location and had the windowsfacing just the right way, you
would just see above where allthe lake part, where the dam,
rocks and everything were.
It would all look just fine.
But, as the judge, I think,wisely pointed out, it's
unlikely somebody is going tonever leave their home, so not
noticing the large ugly dam thatwas constructed on their.
(09:32):
What was their property?
And so that's that concept ofthe injurious affection to your
property.
And so if you have even only aportion of it taken but it
diminishes the value of theproperty you're entitled to not
just a percentage of theproperty you're entitled to what
impact that really have on whatthis property is worth?
And so in this case the personsucceeded.
(09:55):
They got the $340,000 andvarious other costs and this and
that, and that's what theregional district left have to
pay them, because that's reallythe effect that you had on this
previously beautiful propertythat now has a bunch of rocks
and a dam built at the end of it, rather than what looked like a
beautiful, natural, undisturbedlake.
Adam Stirling (10:17):
We will take a quick break, legally speaking.
We'll continue in just a momenthere on CFAX 1070.
Take a quick break, legallyspeaking.
We'll continue in just a momenthere on CFAX 1070.
Don't attempt your day withoutus.
This is Adam Sterling on CFAX1070.
We're back on the air here atCFAX 1070.
As we continue our conversation, michael Mulligan with Mulligan
Defense Lawyers, legallyspeaking on CFAX Up next,
(10:38):
michael, it says the judge whotook over the murder sentencing
in a case that found mandatory25-year parole ineligibility
without the quote faint hopeclause to be unconstitutional
sentenced the offender to lifewithout parole eligibility for
25 years.
It says regardless as a resultof facts in his case.
(10:58):
How can that work?
Michael Mulligan (11:00):
Boy.
There's a lot wrapped up inthat, isn't there?
Yeah, this is a case out ofNanaimo, okay, and it's dealing
with a charge of first-degreemurder and it was a brutal
murder.
This man, who he played guiltyto us promptly, he went over and
murdered somebody bybludgeoning them to death in bed
(11:22):
with a baseball bat, somebodyhe'd been dating for some short
period of time so bad factpattern.
And he clearly did it and hetook responsibility and pled
guilty to it.
But he challenged, or lawyerschallenged, the imposition of
the mandatory minimum sentencefor first-degree murder,
(11:42):
imposition of the mandatoryminimum sentence for
first-degree murder.
And in Canada, murder, whetherit's first or second degree,
always carries a life sentence.
You're never free to go.
We do have a distinct and thatwas part of the compromise back
in 1976 when we got rid of thedeath penalty.
So we're not hanging people.
But the compromise there was ifyou're guilty of murder, first
or second degree, it's life inprison.
(12:03):
And we do distinguish betweenfirst and second degree murder
in terms of the paroleineligibility, and it's
important to remember thateligibility doesn't mean you get
parole, it just means you canask Right, and many people who
are convicted ask and never getit Right.
So that's also an importantthing to know.
(12:24):
But for first degree you cannoteven ask.
For 25 years you may still betold no Right.
For a second degree it could beanywhere between 10 and 25
years.
The judge has to decide thatAgain, that's not when you get
out, just when you can ask.
And we did have for many yearswhat was referred to as a faint
hope provision, and the fainthope provision applied to people
(12:46):
who were serving, like thefirst degree murder, 25 year
parole ineligibility, and whatit meant is that after 15 years
you would be able to at leastask for consideration about
reducing the ineligibility.
So the way that worked is thata person would have to first of
(13:07):
all ask for permission from thechief judge in a province right
spirit court judge to first ofall determine do they likely
have a meaningful application tomake right?
Do they have some likelihood ofsuccess on that?
If the judge said yes, thatseems to have some merit based
on how you behaved for the last15 years in prison, then there
(13:29):
would be a jury who would beconstituted to decide whether
the ineligibility should bereduced.
And then, even if the jury saysyes, you then have to persuade
the parole board right, so it'snot like you get out after 15
years.
But in the past, when theSupreme Court of Canada has
examined whether the life withno parole eligibility for 25
(13:49):
years was constitutionallypermissible and they previously
looked at that that fiend hopeprovision existed, and a number
of years ago now, parliamentmade that Faint Hope clause
inapplicable to any offencecommitted after 2011.
And so what it means now isthat if somebody gets no
first-degree murder by thisperson 25 years, you can't apply
(14:13):
under that Faint Hope provision.
Now, one of the reasons whythat Faint Hope provision exists
or existed was to, for example,create an incentive for
somebody to behave themselves inprison.
Right, if there's a person whohas, let's say, somebody who's,
you know, 60 years old andthey've got a 25-year parole
ineligibility, there's mightilylittle disincentive for the
(14:35):
person to, for example, attack ajail guard, right?
You don't want to be working inthat circumstance.
So the idea was to give somehope.
You might encourage betterbehavior.
And, of course, you know thingscan change after a very long
period of time, hard to predict.
So what happened is the fainthope provision was made
inapplicable to murders afterthat date and on that basis,
(14:59):
this person who pled guilty tothis murder in Nanaimo suggested
that there'd be a basis tore-examine whether that
mandatory minimum, which was thequid pro quo for getting rid of
hanging people, remainedconstitutional.
Or was that cruel and unusual?
And when a judge is asked toexamine that, the way they are
(15:19):
required to examine whethersomething is a cruel and unusual
punishment is they need to lookfirst of all at the person,
their fact pattern right, is itin this case?
Would it be a cruel and unusualpunishment to impose this?
But even if they conclude maybenot for this person, they then
must look at other what arereferred to as reasonable
hypotheticals right to seewhether in some other reasonable
(15:41):
case could it be.
And so that caused the judgewho was hearing the initial
sentencing to look at that.
And in that regard it'simportant to know that first
degree murder the way most of usmost of the time that made out
is where you can show that themurder was planned and
deliberate, right.
We view it as more serious whensomebody has thought carefully
(16:03):
about what they're going to doand then goes over and commits a
murder, as opposed to just inthe heat of passion or something
commits a murder.
Both very serious, but we viewit as more serious if you
thought carefully about it.
You know you've got yourbaseball bat, you've hopped in
your car, you drove over and youmurdered somebody.
That's more serious, right, allserious, but that's more so.
(16:23):
But there are other ways you canget to first degree murder,
like, for example, if somebodycommits a murder of anyone
working in a prison withpermission to work in the prison
.
That's first degree murder,right?
Right, if you kill somebody whois a not only a jail guard, a
(16:48):
jail keeper, various otherpeople, a sheriff, deputy
sheriff, various other people,in some cases a journalist, that
one might be an important one,I guess.
But there are other ways andyou can imagine how in some case
, let's say, a person had a, youknow, got into a yelling match
in the prison with the personthere to collect the garbage and
murders though right, didn'tplan it.
It's a murder.
But it would be sort of on onelevel, yes, it's first-degree
(17:09):
murder because the person wasauthorized to work in the prison
.
But on the other hand, that'smore similar to what
second-degree murder wouldusually be.
If you murder somebody, it'sstill life in prison, but it may
not have the same very highmoral culpability of the person
who's thought about it inadvance, planned it out and then
went and did it right.
The person just kind of flewoff the handle.
Again, murder in serious, butmaybe less so In any case.
(17:32):
On that basis the judge saidlook, having the same sentence
for any of these possible waysyou could get to, first-degree
murder could in some reasonable,hypothetical, be cruel and
unusual in that circumstance.
Now that was the decision ofthe judge dealing with the
sentencing.
But then, to further complicatethings, that judge retired
(17:53):
before the sentencing wasfinished because there was then
further submissions and argumentabout that, and so a new judge
had to take over the sentencing.
And that's allowed, right, youdon't have to redo the whole
thing.
New judge took over and in thenew judge then it's analyzed.
Okay, well, there's been thisdecision that with the faint
hope clause gone, the judge hasfound that in some reasonable,
(18:17):
hypothetical circumstance it canbe imagined, you might wind up
with a punishment that's grosslydisproportionate and therefore
cruel and unusual.
So with that finding, now, whatwith this man?
And so that's what was justdealt with up in Nanaimo, and
the judge who took that oversort of went through all that,
(18:38):
went through the reasoning ofthe judge that found that
section to be potentially or tobe unconstitutional for those
reasons, but then had to decidewhat about this particular man?
And for this particular man,the judge found that, even
though the new judge even thoughthat in some reasonable,
hypothetical there could be acircumstance where the sentence
(18:58):
would be grosslydisproportionate, given the
brutal nature of what this mandid, right, he planned it
carefully, went over and, youknow, savagely beat this person
and I think there was a daughterbeside her in the bed when the
murder was committed Terribleoffense.
And found that.
So for this man, life with nopossibility of parole for 25
(19:19):
years was not inappropriate, itwas not excessive, it was the
appropriate sentence, and sothat's what this man received.
The judge, and so did not dowhat the man's lawyer was asking
, saying okay, well, kevin,found that that was
unconstitutional, at least insome hypothetical circumstance
reasonable hypothetical askedfirst of all that in this case
(19:41):
it be a lesser sentence imposed.
The judge said no to that andimposed what would ordinarily be
imposed for first-degree murder.
But the judge did find that theremoval of that faint hope
provision for offenses after2011, as the original judge had
found, was unconstitutional onthe basis that there's just no
(20:02):
rational basis for doing that,pointing out correctly that the
chance of that happening is veryslim, right, you have to
persuade the judge that that'sgot a good chance of success,
and then you'd have to persuadea jury that that's an
appropriate thing to do at least15 years down the road, and
then you'd have to get theparole board to release you, and
(20:24):
so the judge was at pains topoint out that having that
section found to beunconstitutional does not mean
that this person is in any waylikely to succeed in getting out
earlier, but that removing thatfor cases after that date, as
the original judge had found,does violate that provision
(20:49):
prohibiting cruel and unusualpunishment, and so it's a really
interesting case in terms ofits implications, because it
means the law in DC.
Now as a result of this is thatthe 25-year minimum parole
ineligibility for first-degreemurder would no longer be the
law right, because there's aprinciple that other judges at
(21:10):
the same level are to make thesame decision right, you don't
want to have sort of oddballdecisions all over the place.
There's a case called SpruceMills that says that, so other
cases will follow this, and alsothat that faint hope provision
removal for murders after 2011is no longer constitutional in
British Columbia, so a veryimpactful decision.
There's no doubt it'll beappealed and it'll be really
(21:33):
interesting to see what happensin the Court of Appeal or
eventually, the Supreme Court ofCanada if it gets there.
So I thought it was reallyinteresting, in terms of murder
sentencing, how you get to firstdegree what happens when a
judge retires, and then also anexample of how, even though in
some circumstance, the judgefound this might result in a
(21:54):
grossly disproportionatesentence, for this particular
man, given what he did, thesentence was just fine and so an
important legal victory, Isuppose, for him, but it won't
have an actual impact on what'shappening for the man who was
sentenced in Nanaimo for thevery bad murder.
Adam Stirling (22:11):
Michael Mulligan during the second half of our
second hour every Thursday.
It's Legally Speaking on CFAX.
Thank you so much.
Pleasure as always.
Michael Mulligan (22:17):
Thanks so much .
It's always great to be here.
Adam Stirling (22:19):
All right, quick break News is next.
It's time for our regular segment, joined as
always by Barrister andSolicitor with Mulligan Defence
Lawyers.
It's Michael Mulligan, withLegally Speaking on CFAX 1070.
Good afternoon, michael.
How are we doing?
Michael Mulligan (00:11):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:13):
Some interesting items on the agenda this week.
I'm reading the first one.
It says the Supreme Court ofCanada finds that a trial judge
had the authority to conduct amurder trial without a jury and
without the consent of the Crown.
What happened here?
Michael Mulligan (00:28):
So there are some offenses in the criminal
code that are required to bejury trials unless both the
defense and the Crown agree toallow just a judge to try the
case, and murder is one of thoseoffenses, and the particular
case came from June of 2020.
(00:50):
So what was going on in June of2020?
Covid, no vaccine, early daysof COVID, and so this man was
facing a murder charge and hewished to not wait for there to
be conditions where you couldhave a jury together.
We did try various things.
We in the system tried variousthings to try to make those
(01:12):
possible, particularly in caseswhere people were in jail
waiting for their trial.
Things were tried like usingtwo courtrooms and connecting up
the two courtrooms by video andspreading the jurors out all
over the courtroom with a bigscreen so they could watch what
was going on next door.
But, as you can probablyimagine from that description,
(01:32):
that was not easy, and in theearly days, of course, people
were still wiping down groceriesand didn't know what was going
on, right, and so in this case,the accused said look, I just
want to trial the judge alone,let's get going.
And Crown Counsel refused toconsent to it, which I suppose
is one of those things likeperhaps bad judgment might make
(01:53):
unfavorable law from theperspective of the person who's
acting at least on its face, ina perhaps unreasonable way.
And so the other thing to knowis that there are some decisions
in a criminal prosecution thatare considered to be sort of
core prosecutorial exercises ofdiscretion, and those include
(02:27):
things like whether the Crown ischarging somebody at all, or
what offense are they chargingthe person with, or you know
other just core elements thatthe prosecution gets to decide
that a judge is not permitted tointerfere with unless it's
determined to be what's calledan abusive process, which is a
pretty high threshold.
Do you know what I mean?
If somebody said, look, if itbecame clear that Crown was, I
don't know, charging somebodywith murder because they really
didn't like them as a badneighbor or something right, you
say, well, hold on, that's just, we can interfere with that,
(02:48):
but barring a very high standard, it's hands off.
Crown gets to decide that.
So here the trial proceeded withthe judge alone, and the judge
acquitted the man of murderconvicting instead of
manslaughter, and so the Crownappealed that decision and it
got all the way to the SupremeCourt of Canada, who just
rendered their decision and theyfound that no, the judge was
(03:09):
entitled to do what they didperiod of time, and here they
weren't past the threshold.
But there was a real chancethat if they didn't get on with
this thing the case could windup being sold, it couldn't be
prosecuted at all.
(03:30):
And judges have, under Section24.1 of the Charter, broad
discretion to sort of, you know,come up with remedies to avoid
those kinds of problems.
And that's what the judge didhere.
He said look, I'm ordering thisthing, go ahead, I don't care,
it's just me.
I don't care that the Crown isnot consenting because otherwise
(03:52):
the person is going to have abreach of their right to a trial
within a reasonable period oftime.
Let's go.
And so eventually the SupremeCourt of Canada has now found
that that choice, the choicewhether to consent to allowing
just a judge as opposed to judgeand jury in a murder case, the
Supreme Court of Canada hasruled that that's not part of
that core jurisdiction of theCrown, where the judges can't
(04:14):
interfere with it unless it's anabusive process.
And indeed judges do haveauthority to overrule this kind
of decision by the Crown inorder to, in this case, avoid,
for example, an unreasonabledelay in the trial, and so it's
both interesting on theparticular narrow question about
whether that decision is partof that core prosecutorial
(04:37):
discretion, but it may also leadto other sort of choices like
that being potentially renewableby judges without having to
find that it's such a bad thingthat it's an abusive process.
So interesting both in terms ofthe particular case and the
practical remedy granted by thejudge, and interesting as well
(04:58):
potentially in terms of how thismight impact other sort of
decisions that a judge mightthink need to be remedied.
So very interesting case and Ithink perhaps one of the
clearest examples I've seenlately of how potentially making
a dubious, taking a dubiousposition causes everyone
involved to have to carefullyscrutinize it.
(05:18):
And in this case it's madeclear that that decision is not
part of that core discretion andjudges can interfere with it
where necessary to avoid thingslike an unreasonable delay in
the trial.
Adam Stirling (05:30):
I'm reading this next one.
It says compensation for aregional district building an
ugly dam on a property.
Am I reading that correctly?
Michael Mulligan (05:40):
You're reading that right.
And so this is an interestingcase that has other, broader
implications as well, and it wasa hearing dealing with Section
40 of the Expropriation Act.
And so there's authority forgovernment to expropriate
private property for, you know,public use right, that's sort of
(06:01):
people would understand thatright, if you need to put a road
through or something a persondoesn't want to sell their
property, they can just take it.
But they have to pay faircompensation for it and if there
isn't an agreement, that can goto court, the judge will decide
what that is.
And that particular section Ireferred to, section 40 of the
act that deals with that dealswith the concept of partial
(06:23):
takings, right, it's that theydidn't take the whole property.
This particular property was alarge piece of property up in
the Kootenays, so the 157 acreswas described as like a
ranch-type property that hadquite an attractive lake on the
property.
It's also an interesting casebecause the judge included not
only the written reasons butpictures of things like what on
the property.
It's also an interesting casebecause the judge included not
(06:44):
only written reasons butpictures of things like what did
the property look like before,right, which gives a lot of
meaning to the decision, andthat particular section dealing
with partial takings deals withthis concept of an injurious
affection to the property.
And so in this case it was thedam that was built and it turned
(07:06):
what you know.
It was only a small part ofthis 157-acre property, but a
large part of the value of theproperty was this beautiful lake
that was almost all within theproperty and it turned it from
sort of a natural-looking laketo this thing, with a rather
large rocky dam at the end of itthat looks all man-made.
(07:26):
And so the property owner hadan expert report from an
appraiser that said that theeffect of that change was to
reduce the property value by$340,080.
That's pretty precise, but thatwas the result.
And the idea there is that ifyou take just part of a property
(07:47):
but it has the effect ofreducing its market value, what
you're entitled to is the changeto the market value.
So, like here's an example of,maybe in a smaller property.
Let's say you own a house inthe city of Victoria, right, and
they decide they want to put ina bus stop size safe injection
site on the corner of yourproperty.
(08:08):
And so they come andexpropriate a hundred square
meters corner of your propertyand install a safe injection
outdoor site on the corner ofyour property and they say, well
, we just want to pay you forthe percentage of your land that
we took there.
To put that in right, indeed,one way to calculate.
That might be well, what's thetotal value of your land that we
took there?
To put that in right, indeed,one way to calculate, that might
be well, what's the total valueof the land?
And let's take the 10% they cutoff to make the bus shelter
(08:29):
size, safe injection outdoorsite in the corner of your
property.
But that's not really going tocapture the impact that just
added your property value, right, it's not fair to just say
we're going to give you 10% ofthe assessed value of your land.
We've got to take into accountwhat's the real impact that's
having here, and so that's whythe judge in this case took the
(08:50):
time to put in the judgmentthings like well, here's a
picture, here's what the viewsof the lake look like.
Now, here's what it looks like,right, and that gives real
meaning to the opinion of theappraiser who said no, this is
seriously diminishing theopinion of the appraiser who
said no, this is seriouslydiminishing the value of it.
There was also an interestingthing that the regional district
part of their repeatedsubmission, according to the
(09:10):
judge suggested that if youbuilt a house in just the right
location and had the windowsfacing just the right way, you
would just see above where allthe lake part, where the dam,
rocks and everything were.
It would all look just fine.
But, as the judge, I think,wisely pointed out, it's
unlikely somebody is going tonever leave their home, so not
noticing the large ugly dam thatwas constructed on their.
(09:32):
What was their property?
And so that's that concept ofthe injurious affection to your
property.
And so if you have even only aportion of it taken but it
diminishes the value of theproperty you're entitled to not
just a percentage of theproperty you're entitled to what
impact that really have on whatthis property is worth?
And so in this case the personsucceeded.
(09:55):
They got the $340,000 andvarious other costs and this and
that, and that's what theregional district left have to
pay them, because that's reallythe effect that you had on this
previously beautiful propertythat now has a bunch of rocks
and a dam built at the end of it, rather than what looked like a
beautiful, natural, undisturbedlake.
Adam Stirling (10:17):
We will take a quick break, legally speaking.
We'll continue in just a momenthere on CFAX 1070.
Take a quick break, legallyspeaking.
We'll continue in just a momenthere on CFAX 1070.
Don't attempt your day withoutus.
This is Adam Sterling on CFAX1070.
We're back on the air here atCFAX 1070.
As we continue our conversation, michael Mulligan with Mulligan
Defense Lawyers, legallyspeaking on CFAX Up next,
(10:38):
michael, it says the judge whotook over the murder sentencing
in a case that found mandatory25-year parole ineligibility
without the quote faint hopeclause to be unconstitutional
sentenced the offender to lifewithout parole eligibility for
25 years.
It says regardless as a resultof facts in his case.
(10:58):
How can that work?
Michael Mulligan (11:00):
Boy.
There's a lot wrapped up inthat, isn't there?
Yeah, this is a case out ofNanaimo, okay, and it's dealing
with a charge of first-degreemurder and it was a brutal
murder.
This man, who he played guiltyto us promptly, he went over and
murdered somebody bybludgeoning them to death in bed
(11:22):
with a baseball bat, somebodyhe'd been dating for some short
period of time so bad factpattern.
And he clearly did it and hetook responsibility and pled
guilty to it.
But he challenged, or lawyerschallenged, the imposition of
the mandatory minimum sentencefor first-degree murder,
(11:42):
imposition of the mandatoryminimum sentence for
first-degree murder.
And in Canada, murder, whetherit's first or second degree,
always carries a life sentence.
You're never free to go.
We do have a distinct and thatwas part of the compromise back
in 1976 when we got rid of thedeath penalty.
So we're not hanging people.
But the compromise there was ifyou're guilty of murder, first
or second degree, it's life inprison.
(12:03):
And we do distinguish betweenfirst and second degree murder
in terms of the paroleineligibility, and it's
important to remember thateligibility doesn't mean you get
parole, it just means you canask Right, and many people who
are convicted ask and never getit Right.
So that's also an importantthing to know.
(12:24):
But for first degree you cannoteven ask.
For 25 years you may still betold no Right.
For a second degree it could beanywhere between 10 and 25
years.
The judge has to decide thatAgain, that's not when you get
out, just when you can ask.
And we did have for many yearswhat was referred to as a faint
hope provision, and the fainthope provision applied to people
(12:46):
who were serving, like thefirst degree murder, 25 year
parole ineligibility, and whatit meant is that after 15 years
you would be able to at leastask for consideration about
reducing the ineligibility.
So the way that worked is thata person would have to first of
(13:07):
all ask for permission from thechief judge in a province right
spirit court judge to first ofall determine do they likely
have a meaningful application tomake right?
Do they have some likelihood ofsuccess on that?
If the judge said yes, thatseems to have some merit based
on how you behaved for the last15 years in prison, then there
(13:29):
would be a jury who would beconstituted to decide whether
the ineligibility should bereduced.
And then, even if the jury saysyes, you then have to persuade
the parole board right, so it'snot like you get out after 15
years.
But in the past, when theSupreme Court of Canada has
examined whether the life withno parole eligibility for 25
(13:49):
years was constitutionallypermissible and they previously
looked at that that fiend hopeprovision existed, and a number
of years ago now, parliamentmade that Faint Hope clause
inapplicable to any offencecommitted after 2011.
And so what it means now isthat if somebody gets no
first-degree murder by thisperson 25 years, you can't apply
(14:13):
under that Faint Hope provision.
Now, one of the reasons whythat Faint Hope provision exists
or existed was to, for example,create an incentive for
somebody to behave themselves inprison.
Right, if there's a person whohas, let's say, somebody who's,
you know, 60 years old andthey've got a 25-year parole
ineligibility, there's mightilylittle disincentive for the
(14:35):
person to, for example, attack ajail guard, right?
You don't want to be working inthat circumstance.
So the idea was to give somehope.
You might encourage betterbehavior.
And, of course, you know thingscan change after a very long
period of time, hard to predict.
So what happened is the fainthope provision was made
inapplicable to murders afterthat date and on that basis,
(14:59):
this person who pled guilty tothis murder in Nanaimo suggested
that there'd be a basis tore-examine whether that
mandatory minimum, which was thequid pro quo for getting rid of
hanging people, remainedconstitutional.
Or was that cruel and unusual?
And when a judge is asked toexamine that, the way they are
(15:19):
required to examine whethersomething is a cruel and unusual
punishment is they need to lookfirst of all at the person,
their fact pattern right, is itin this case?
Would it be a cruel and unusualpunishment to impose this?
But even if they conclude maybenot for this person, they then
must look at other what arereferred to as reasonable
hypotheticals right to seewhether in some other reasonable
(15:41):
case could it be.
And so that caused the judgewho was hearing the initial
sentencing to look at that.
And in that regard it'simportant to know that first
degree murder the way most of usmost of the time that made out
is where you can show that themurder was planned and
deliberate, right.
We view it as more serious whensomebody has thought carefully
(16:03):
about what they're going to doand then goes over and commits a
murder, as opposed to just inthe heat of passion or something
commits a murder.
Both very serious, but we viewit as more serious if you
thought carefully about it.
You know you've got yourbaseball bat, you've hopped in
your car, you drove over and youmurdered somebody.
That's more serious, right, allserious, but that's more so.
(16:23):
But there are other ways you canget to first degree murder,
like, for example, if somebodycommits a murder of anyone
working in a prison withpermission to work in the prison
.
That's first degree murder,right?
Right, if you kill somebody whois a not only a jail guard, a
(16:48):
jail keeper, various otherpeople, a sheriff, deputy
sheriff, various other people,in some cases a journalist, that
one might be an important one,I guess.
But there are other ways andyou can imagine how in some case
, let's say, a person had a, youknow, got into a yelling match
in the prison with the personthere to collect the garbage and
murders though right, didn'tplan it.
It's a murder.
But it would be sort of on onelevel, yes, it's first-degree
(17:09):
murder because the person wasauthorized to work in the prison
.
But on the other hand, that'smore similar to what
second-degree murder wouldusually be.
If you murder somebody, it'sstill life in prison, but it may
not have the same very highmoral culpability of the person
who's thought about it inadvance, planned it out and then
went and did it right.
The person just kind of flewoff the handle.
Again, murder in serious, butmaybe less so In any case.
(17:32):
On that basis the judge saidlook, having the same sentence
for any of these possible waysyou could get to, first-degree
murder could in some reasonable,hypothetical, be cruel and
unusual in that circumstance.
Now that was the decision ofthe judge dealing with the
sentencing.
But then, to further complicatethings, that judge retired
(17:53):
before the sentencing wasfinished because there was then
further submissions and argumentabout that, and so a new judge
had to take over the sentencing.
And that's allowed, right, youdon't have to redo the whole
thing.
New judge took over and in thenew judge then it's analyzed.
Okay, well, there's been thisdecision that with the faint
hope clause gone, the judge hasfound that in some reasonable,
(18:17):
hypothetical circumstance it canbe imagined, you might wind up
with a punishment that's grosslydisproportionate and therefore
cruel and unusual.
So with that finding, now, whatwith this man?
And so that's what was justdealt with up in Nanaimo, and
the judge who took that oversort of went through all that,
(18:38):
went through the reasoning ofthe judge that found that
section to be potentially or tobe unconstitutional for those
reasons, but then had to decidewhat about this particular man?
And for this particular man,the judge found that, even
though the new judge even thoughthat in some reasonable,
hypothetical there could be acircumstance where the sentence
(18:58):
would be grosslydisproportionate, given the
brutal nature of what this mandid, right, he planned it
carefully, went over and, youknow, savagely beat this person
and I think there was a daughterbeside her in the bed when the
murder was committed Terribleoffense.
And found that.
So for this man, life with nopossibility of parole for 25
(19:19):
years was not inappropriate, itwas not excessive, it was the
appropriate sentence, and sothat's what this man received.
The judge, and so did not dowhat the man's lawyer was asking
, saying okay, well, kevin,found that that was
unconstitutional, at least insome hypothetical circumstance
reasonable hypothetical askedfirst of all that in this case
(19:41):
it be a lesser sentence imposed.
The judge said no to that andimposed what would ordinarily be
imposed for first-degree murder.
But the judge did find that theremoval of that faint hope
provision for offenses after2011, as the original judge had
found, was unconstitutional onthe basis that there's just no
(20:02):
rational basis for doing that,pointing out correctly that the
chance of that happening is veryslim, right, you have to
persuade the judge that that'sgot a good chance of success,
and then you'd have to persuadea jury that that's an
appropriate thing to do at least15 years down the road, and
then you'd have to get theparole board to release you, and
(20:24):
so the judge was at pains topoint out that having that
section found to beunconstitutional does not mean
that this person is in any waylikely to succeed in getting out
earlier, but that removing thatfor cases after that date, as
the original judge had found,does violate that provision
(20:49):
prohibiting cruel and unusualpunishment, and so it's a really
interesting case in terms ofits implications, because it
means the law in DC.
Now as a result of this is thatthe 25-year minimum parole
ineligibility for first-degreemurder would no longer be the
law right, because there's aprinciple that other judges at
(21:10):
the same level are to make thesame decision right, you don't
want to have sort of oddballdecisions all over the place.
There's a case called SpruceMills that says that, so other
cases will follow this, and alsothat that faint hope provision
removal for murders after 2011is no longer constitutional in
British Columbia, so a veryimpactful decision.
There's no doubt it'll beappealed and it'll be really
(21:33):
interesting to see what happensin the Court of Appeal or
eventually, the Supreme Court ofCanada if it gets there.
So I thought it was reallyinteresting, in terms of murder
sentencing, how you get to firstdegree what happens when a
judge retires, and then also anexample of how, even though in
some circumstance, the judgefound this might result in a
(21:54):
grossly disproportionatesentence, for this particular
man, given what he did, thesentence was just fine and so an
important legal victory, Isuppose, for him, but it won't
have an actual impact on what'shappening for the man who was
sentenced in Nanaimo for thevery bad murder.
Adam Stirling (22:11):
Michael Mulligan during the second half of our
second hour every Thursday.
It's Legally Speaking on CFAX.
Thank you so much.
Pleasure as always.
Michael Mulligan (22:17):
Thanks so much .
It's always great to be here.
Adam Stirling (22:19):
All right, quick break News is next.
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