July 4, 2025 • 20 mins
What happens when a sophisticated scammer steals over half a million dollars in Bitcoin through a phone company's security failure? And more importantly, can you even take them to court?
The answer is more complicated than you might think, as we explore in this eye-opening legal examination of consumer rights in the digital age. A British Columbia resident fell victim to an elaborate fraud when someone impersonated a Rogers technician, convinced a retail employee to enable screen sharing, and accessed the Rogers customer database. After extracting personal information, the scammer performed a SIM swap and drained the victim's cryptocurrency account, assets that later appreciated to a staggering one million dollars.
When the victim attempted to sue Rogers, they encountered the hidden trap of arbitration clauses—those pages of legalese we all scroll through and accept without reading when setting up our services. Despite recent changes to BC consumer protection laws specifically banning these clauses, the court ruled in favor of Rogers on a fascinating technicality involving "retroactive" versus "retrospective" legislation. We break down this crucial distinction and explore how legislative language can determine whether consumers have access to justice.
The episode also examines a compelling Vancouver assault case that showcases the notorious unreliability of eyewitness identification. Despite a police officer's "100% certainty" about identifying a suspect from security footage, the court wasn't convinced, particularly when the officer failed to notice the suspect's distinctive "benzo gait," a hunched walking style common among drug users in the Downtown Eastside. This case provides a powerful reminder of why confident witnesses don't necessarily make reliable ones.
Whether you're concerned about protecting your digital assets or fascinated by the evolving landscape of consumer rights, this discussion offers valuable insights into how our legal system struggles to keep pace with technological change. Have you read the fine print in your service agreements? After hearing this, you might want to.
Follow this link for a transcript of the show and links to the cases discussed.
Mark as Played
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, Michael Mulligan withLegally Speaking on CFAX 1070.
Afternoon, Michael, how are wedoing?
Michael Mulligan (00:10):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:13):
Some interesting topics on tap for us today,
including the matter of cellphone bills, contracts and
litigation arbitration.
And do I read crypto loss there?
What's happening here?
Michael Mulligan (00:26):
Not good things.
Never good things are happeningwhen these cases wind up in
court.
I think that's the common theme.
Adam Stirling (00:31):
Fair.
Michael Mulligan (00:32):
So the case involved a person with a Rogers
cell phone and the person wasfrom British Columbia and there
was a fraud perpetrated which, Imust say, just reading the
description of it in the case isboy, it's certainly a
sophisticated one.
The background of it thisperson had a cell phone since
2015.
And then in 2021, a fraudartist pretending to be a Rogers
(00:59):
technician called into a retailkiosk in Quebec City you know
one of those kind of things yousee in a mall, you know what I
mean selling cell phones andthat person, the fraud artist
who called in, persuaded theclerk who answered the call that
they were a Rogers technicianand got them to enable screen
(01:19):
sharing on a phone there I guessone of the ones that that
company had.
And then the fraud artist usedthe screen sharing to access the
Rogers customer database andwas able to extract personal
information for it's unclearwhether it's more than one
person, but certainly thisperson and got a bunch of
(01:41):
information, including cellphone and account information,
and then used that to perform aSIM swap, like a little card
that goes in your phone.
That makes it work.
I guess if you have enoughdetails about the person, you
(02:01):
can used that to access variousthings on the phone, including,
very unfortunately, bitcoinwallets on the phone, which they
then cleaned out of whatamounted to $534,000 in Bitcoin,
which shortly after this wentup to a million dollars.
So the fraud artist, by doingthat, managed to get what
(02:22):
amounted to a million dollars inBitcoin.
So the fraud artist, by doingthat, managed to get what
amounted to a million dollars inBitcoin, and that resulted in
this poor cell phone owner suing, not surprisingly, rogers Match
, the company I guess wasrunning that kiosk.
Apparently they have a chain ofthose all across the country
and the unknown clerk workingfor Match so sued them all.
(02:42):
A clerk working for Matt sosued them all.
And the lawsuit was brought onthe basis of a number of things
involving allegations ofnegligence and breach of
contract and alleged breach ofthe Privacy Act which we have in
British Columbia.
And one of the interestingthings is that the case was
brought in British Columbia onthe basis that the person lived
(03:04):
here and there's a clause in thecell phone contract that speaks
about the law and thejurisdiction where the bills are
sent to being the applicableone, because otherwise there's
some issue about whether thisclaim should be in British
Columbia, ontario, where Rogersis based, or Quebec, where the
retail kiosk was located, and sothere.
(03:25):
So claims started in all threeof those places, because that
was a little ambiguous.
But the particular issue in thedecision that just came out
about this terribly unfortunatestate of affairs involves what's
called an arbitration clause,and those are a favorite, I must
say, with large companiesdealing with members of the
public.
(03:45):
And they are clauses buried inthose service agreements that
most people scroll through 10pages of legalese sue us If you
have a dispute.
You've got to go to arbitration, which could have, I guess,
(04:05):
various advantages for thecompanies involved, right, and
one of the things they are doingnot this was the purpose of
this particular case but one ofthe things those prevent are
class actions, right, becauseeach person has to go to
arbitration so you can't sue usin court.
Look, you would read to that onpage 14 here in the tiny print.
(04:28):
And those have become sonotorious, those arbitration
conditions, that in BritishColumbia just recently there
were changes made to theconsumer protection legislation
that essentially prohibits thosethings, because they just have
an unfair result basically forconsumers, and so that change,
(04:51):
which just occurred recently,says that those are no longer
effective.
You can't squeeze those intoyour tiny print and stop people
from going to court when yourmillion dollars in Bitcoin gets
stolen.
But it says, in addition tothis this is really the
interesting issue with this caseit says that those changes that
(05:11):
say no more of those things thearbitration conditions apply to
contracts entered into before,on or after the changes came
into effect.
Okay, and so those changes cameinto effect.
Okay, and so those thosechanges came into effect March
of this year.
So this case goes to court withRogers asking that the claim be
(05:34):
stopped on the basis that thisperson had agreed to the tiny
print about only being able togo to arbitration.
And the person in court arguedwell, hold on as of March 2025,
this, this is not allowed.
I'm a consumer, you know.
This is not some big business,it's just some poor person who
scrolled through their terms ofservice with them.
(05:54):
And this is.
You know.
This change is effective before, on or after the coming into
force of the prohibition onthese things.
So you know aha, know aha,that's it Too bad.
Rogers was the claim.
However, this is theinteresting interpretation issue
.
There's a couple of differentlegal concepts.
One is the concept of a changeaffected by legislation which is
(06:17):
retroactive versus a changewhich is retrospective.
What does that mean?
I don't know.
Well, here's what it means.
If you have a retroactivechange, it affects legal rights
directly for things that havealready happened.
Like it goes back in time andchanges how the law would work.
Okay, a retrospective changewould be like a change that
(06:40):
might affect, like, how thingswould occur.
Like in this case, with acontract that was entered into
in 2015,.
Right, this, you know, tinyprint from 2015.
If the change is retroactive,it goes back in time and changes
what that contract means or howit's enforceable.
If it's retrospective, thechange is simply how that
(07:01):
contract would be interpretedfor things going forward.
It's a subtle change and thereis a principle of statutory
interpretation that says that,unless legislation is clear that
the intent was to make thechange retroactive, it's not.
And so when you think aboutthat I mean you think about it
(07:23):
in this context right, it wouldbe lawful, for you know, there's
the authority to makeretroactive changes to the law
that could affect how thingswould happen, you know,
involving issues that occurredbefore that anyone had even
considered it.
And sort of on one level, hethinks well, that's awfully
unfair, right?
People kind of govern theiraffairs based on what the law is
(07:44):
.
How are you supposed to know ifit's going to change?
You know, 10 years down the roadand there's been some
litigation about that in BritishColumbia and in fact one of the
cases referred to involved theUniversity of British Columbia,
where it became ambiguous as towhether they had any authority
to collect parking fines that'san interesting little tributary
(08:06):
of the law and they werepotentially liable, if they
didn't have authority to do that, to have to give all those
fines back.
They've been collecting foryears from people.
And in that case the governmentenacted legislation that
retroactively empowered theUniversity of British Columbia
to collect fines for parkinginfractions before the
(08:27):
legislation existed.
And in that case, ultimatelythe Court of Appeal upheld that
and they said well, look,there's no constitutional
prohibition on doing that.
You can change things after thefact as long as you're clear
about it.
And in that case legislationwas made clear about it so that
even though the university mighthave collected fines they had
no authority to collect.
The legislature just came alongand retroactively gave them the
(08:50):
authority to do so.
So they got to keep all theparking fines.
Well, unfortunately, here forthe cell phone owner, minus the
million dollars in Bitcoin.
The judge found that thoseprovisions, even though they
speak about contracts enteredinto before, on or after the
coming into effect of thatchange that bans these clauses,
(09:12):
that it wasn't clear enough tomake it retroactive.
It was only retrospective,which means that if you entered
into that one of those cellphone contracts like this poor
person did back in 2015, andsomebody steals your Bitcoin
after getting access to yourphone by calling into some
service kiosk or some other hackwhich might be viewed as sort
(09:34):
of you know, probably thenegligence claim would be like
hey, you probably shouldn't haveyour employees, you know,
giving phone callers screenaccess to the Rogers computer
system.
Right, the reasonable claimthat that's kind of careless or
negligent you would be protectedagainst that arbitration clause
.
If that happened now, eventhough the contract, whenever
(09:56):
you scrolled through the fineprint and hit accept, accept,
accept, so your phone worked,you'd be okay to sue now.
But it doesn't go back andchange the state of affairs for
things like this before thechange, and so the effect of it
is Rogers was successful instopping this person from suing
them and now their remedy is togo through an arbitration
(10:19):
process.
We'll see what remedy they getfrom that.
And then the other interestingthing is that the person argued
well, hold on.
Okay, fine, if Rogers hasoutfoxed us with that argument
here, we should still be able tosue the kiosk, the match people
you know I didn't have any,they didn't scroll through any
tiny fine print with them, itwas just some person you know.
(10:42):
So why should they be preventedfrom doing that?
But the Rogers and match weresuccessful in stopping that too,
and they were successful instopping it on the basis of the
fact that the two claims were sointertwined.
You know who's on the hook forthat?
Match, rogers, you could.
If you had one thing in courtand one thing in arbitration,
you'd have multiple proceedings.
(11:03):
There could be inconsistentresults.
It would waste time andresources.
Those were their arguments andthat carried the day.
And so the effect of this isthat the person will be stuck
with the arbitrator dealing withthe million-dollar claim
against both Match and Rogers.
And so, looking at all this,it's, I think, good from a
(11:25):
consumer point of view thatthese things, which I think have
generally just workedunfairness on consumers, are
banned going forward.
But it may be that this is oneof those cases, like in the UBC
case where they said no, we'reclearly saying you could keep
the fines from before.
It might be one of those caseswhere fairness would dictate a
legislative response to thissaying so clearly this is
(11:47):
retroactive.
Too bad Rogers, too bad largecompanies that stick these
things in here.
You won't be able to get awaywith enforcing them any further,
even if things happen before weplug that hole.
But that's not currently thestate of the law, and so that's
the very latest on Rogersretroactive versus retrospective
and what it means if you're aconsumer and somebody steals a
(12:09):
million dollars by impersonatinga Rogers technician.
So that's the latest from theBC Supreme Court.
Adam Stirling (12:15):
Legally speaking, we'll continue right after this
on CFAX 1070.
Legally speaking continues onCFAX 1070, as we're joined, as
always, by Michael Mulligan,barrister and solicitor, with
Mulligan Defense Lawyers Michaelup next on the agenda.
I'm reading it says BenzogateNike shoes and a very large
crooked nose, not enough toprove ID after the complainant
(12:37):
passes away before trial.
What is happening?
Michael Mulligan (12:41):
Well, once again, nothing good.
So this is a case actually outof Vancouver.
It's an interesting factpattern that deals with the
challenges of identificationevidence in criminal cases,
which I must say is a, we know,a notorious source of convicting
the wrong person.
Right, it can just be hard tocorrectly identify the right
(13:01):
person who's done something.
This particular case was mademore challenging and it's an
assault case because thecomplainant in the case, for
reasons unexplained, passed awayprior to trial.
So there's no.
The Crown nonetheless proceededwith the charge on the basis
(13:22):
that there was a video, like asecurity video, from two
supportive housing buildingsnear where this event occurred,
along with some photographs ofthe scene.
Was whether this videorecording of what transpired and
(13:47):
some still frames from that,was sufficient to establish that
it was the accused whocommitted the assault.
It looked like an allegation ofbadly cutting somebody on the
cheek or bad laceration on thecheek of the person.
And what the Crown did in thiscase, or what the police did, is
that they put up in the policestation a notice about this, I
(14:09):
guess with some pictures, stillframes from it, asking whether
any police officers there couldrecognize the person in the
video or the still frames andone officer in the Vancouver
Police Department said that, yes, they could identify who that
person was.
That person was arrested andcharged, and so that police
(14:33):
officer who had indicated thathe had dealt with the accused on
, I think, two or three prioroccasions on one occasion he
said that he dealt with him forjaywalking it was unclear what
the other occasions were, butclaimed that he had dealt with
this person on some occasions,totaling 45 minutes said that he
could identify that person asbeing the person in this video
(14:56):
of the assault.
And so that police officer cameto court and testified that he
was 100% certain that this wasthe same individual and was then
questioned about some of thereasons of why he thought that.
And so the judge had to analyzethat issue.
But whether that evidence, thatkind of opinion evidence, was
(15:17):
sufficient and I should pausehere to say that generally in a
criminal case, opinion evidenceisn't permissible.
Generally people can testifyabout things they saw or did not
.
An opinion like I think that'sthe guy.
But there is an exception forsome opinion evidence, called
lay opinion evidence, on topicslike, yeah, that's the same
person, or that person looksdrunk the kind of opinion that
(15:39):
somebody with no specialtraining might be able to give,
and the threshold for that issimply whether it might be
helpful.
And so the judge found that,okay, that would certainly be
helpful and so that's going tobe allowed here.
And then the judge identifiedsome of the law concerning
identification evidence anddifferent types of it, and the
judge pointed out there are atleast three different kinds of
(16:01):
identification evidence.
Pointed out there are at leastthree different kinds of
identification evidence.
One kind of identificationevidence is what's referred to
as recognition evidence, whichwould be like somebody who knows
a person well, like somebodylooking at a video or seeing
somebody and saying, yeah,that's my brother, right, with
the idea that you're veryfamiliar with, like how the
person moves and looks and so onright, and that can be a more
(16:21):
reliable type of identificationevidence.
There can also beidentification evidence which is
done through things likeshowing a lineup or like a
sequential series of picturesright.
But there's also a kind ofidentification evidence which
amounts to eyewitness.
Identification evidence by astranger and that's the kind
which long judicial experiencehas taught us is very inherently
(16:45):
unreliable.
And the judge found here thatwhile this police officer had
dealt with the accused on someprevious occasions, it was for
45 minutes various circumstanceswhere the officer didn't have a
lot of detail about what theywere like.
He thought it might have been ajaywalking thing.
He dealt with them on and hefound that this was closer to
the sort of you know strangeridentification than somebody
(17:07):
saying hey, that's my brother onthe video or I just recognize
how he, you know what he lookslike here.
There were some other challengesbecause the judge also looked
very carefully at the video andvery carefully at the man in
court, and the judge concludedhe could not determine that they
were the same person by lookingat the man in court and looking
back and forth at the video,right, and furthermore there
(17:28):
were some things and this can becritical some elements which
don't seem to quite match up andone of the interesting things,
I must say, I do this kind ofwork for a living.
I'm not sure I'd ever heardthis term before, but the judge
said that on the video, theperson on the video who
committed the assault had adistinctive gait, like manner of
walking, and he described itthis way the person on the video
(17:50):
, his gait is pronounced anddistinctive.
In the downtown east side thisgait is known as benzo gait.
It is a physical, hunch-likewalking consistent with a drug
addicts in the downtown eastside Some people may have seen
that, you know you sometimes seesomebody who looks like they're
certainly under the influenceof something kind of hunched
over, I think at the waist, insort of an L-shape, walking
(18:12):
along, physically hunched over,and the judge said look, that's
what the person on the videolooks like.
And the police officer, who'sfamiliar with the accused from
the jaywalking and some otherthings, hadn't noticed anything
unusual about his gait, on leaston the occasions when he dealt
with him.
Another thing that the officertried to rely upon is he said oh
yes, when he had dealt withthis man, he was wearing nike
(18:32):
shoes, uh, which he described ina couple occasions as having a
black swoosh, uh, and then latersaid hold on, no, no, I
misspoke, a white swo, a whiteswoosh, a white swoosh.
And so saying well, you know,the person in the video had a
white swoosh on his shoes.
And so the judge pointed outwell, of course the officer had
(18:55):
twice said that the person hedealt with had a black swoosh,
before claiming he misspokeabout that, but then also
pointing out that, you know,this is probably a little bit of
judicial notice that Nike shoesare pretty common and pointing
out that all kinds of peoplewear them, the judge went on to
say including world-classathletes, that maybe you can
take judicial notice of that.
So, in any case, with all ofthat, the judge said look, this
just isn't enough, right, youmight have persuaded him that
(19:20):
probably it was the same person.
Certainly there were somecharacteristics which look
similar, but pointing out thingslike you know a person's nose
or that they wore Nike shoes onsome occasion, just wasn't
enough to do it.
There's nothing else connectingthese people, right?
And there's no complainantthere, it's just this officer
saying yeah, that's the person Ithink that I've dealt with on
(19:41):
some other occasions.
I'm really certain.
But, as the judge correctlypointed out, the degree of
certainty of a witness is not anindication of how reliable they
are.
Right.
Somebody can be really, reallysure, and that doesn't
necessarily make it so, and soit's an example of how
eyewitness evidence is used.
And that interesting concept ofthe Benzo gate combined with
(20:01):
Nike shoes just wasn't enough,and so the man was found not
guilty.
That's the latest from theprovincial court.
Adam Stirling (20:08):
Legally speaking, during the second half of our
second hour every Thursday.
Michael Mulligan, thank you somuch as always.
Michael Mulligan (20:14):
Thank you so much.
It's always great to be here.
It's time for our regular segment, joined as
always by Barrister andSolicitor with Mulligan Defence
Lawyers, Michael Mulligan withLegally Speaking on CFAX 1070.
Afternoon, Michael, how are wedoing?
Michael Mulligan (00:10):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:13):
Some interesting topics on tap for us today,
including the matter of cellphone bills, contracts and
litigation arbitration.
And do I read crypto loss there?
What's happening here?
Michael Mulligan (00:26):
Not good things.
Never good things are happeningwhen these cases wind up in
court.
I think that's the common theme.
Adam Stirling (00:31):
Fair.
Michael Mulligan (00:32):
So the case involved a person with a Rogers
cell phone and the person wasfrom British Columbia and there
was a fraud perpetrated which, Imust say, just reading the
description of it in the case isboy, it's certainly a
sophisticated one.
The background of it thisperson had a cell phone since
2015.
And then in 2021, a fraudartist pretending to be a Rogers
(00:59):
technician called into a retailkiosk in Quebec City you know
one of those kind of things yousee in a mall, you know what I
mean selling cell phones andthat person, the fraud artist
who called in, persuaded theclerk who answered the call that
they were a Rogers technicianand got them to enable screen
(01:19):
sharing on a phone there I guessone of the ones that that
company had.
And then the fraud artist usedthe screen sharing to access the
Rogers customer database andwas able to extract personal
information for it's unclearwhether it's more than one
person, but certainly thisperson and got a bunch of
(01:41):
information, including cellphone and account information,
and then used that to perform aSIM swap, like a little card
that goes in your phone.
That makes it work.
I guess if you have enoughdetails about the person, you
(02:01):
can used that to access variousthings on the phone, including,
very unfortunately, bitcoinwallets on the phone, which they
then cleaned out of whatamounted to $534,000 in Bitcoin,
which shortly after this wentup to a million dollars.
So the fraud artist, by doingthat, managed to get what
(02:22):
amounted to a million dollars inBitcoin.
So the fraud artist, by doingthat, managed to get what
amounted to a million dollars inBitcoin, and that resulted in
this poor cell phone owner suing, not surprisingly, rogers Match
, the company I guess wasrunning that kiosk.
Apparently they have a chain ofthose all across the country
and the unknown clerk workingfor Match so sued them all.
(02:42):
A clerk working for Matt sosued them all.
And the lawsuit was brought onthe basis of a number of things
involving allegations ofnegligence and breach of
contract and alleged breach ofthe Privacy Act which we have in
British Columbia.
And one of the interestingthings is that the case was
brought in British Columbia onthe basis that the person lived
(03:04):
here and there's a clause in thecell phone contract that speaks
about the law and thejurisdiction where the bills are
sent to being the applicableone, because otherwise there's
some issue about whether thisclaim should be in British
Columbia, ontario, where Rogersis based, or Quebec, where the
retail kiosk was located, and sothere.
(03:25):
So claims started in all threeof those places, because that
was a little ambiguous.
But the particular issue in thedecision that just came out
about this terribly unfortunatestate of affairs involves what's
called an arbitration clause,and those are a favorite, I must
say, with large companiesdealing with members of the
public.
(03:45):
And they are clauses buried inthose service agreements that
most people scroll through 10pages of legalese sue us If you
have a dispute.
You've got to go to arbitration, which could have, I guess,
(04:05):
various advantages for thecompanies involved, right, and
one of the things they are doingnot this was the purpose of
this particular case but one ofthe things those prevent are
class actions, right, becauseeach person has to go to
arbitration so you can't sue usin court.
Look, you would read to that onpage 14 here in the tiny print.
(04:28):
And those have become sonotorious, those arbitration
conditions, that in BritishColumbia just recently there
were changes made to theconsumer protection legislation
that essentially prohibits thosethings, because they just have
an unfair result basically forconsumers, and so that change,
(04:51):
which just occurred recently,says that those are no longer
effective.
You can't squeeze those intoyour tiny print and stop people
from going to court when yourmillion dollars in Bitcoin gets
stolen.
But it says, in addition tothis this is really the
interesting issue with this caseit says that those changes that
(05:11):
say no more of those things thearbitration conditions apply to
contracts entered into before,on or after the changes came
into effect.
Okay, and so those changes cameinto effect.
Okay, and so those thosechanges came into effect March
of this year.
So this case goes to court withRogers asking that the claim be
(05:34):
stopped on the basis that thisperson had agreed to the tiny
print about only being able togo to arbitration.
And the person in court arguedwell, hold on as of March 2025,
this, this is not allowed.
I'm a consumer, you know.
This is not some big business,it's just some poor person who
scrolled through their terms ofservice with them.
(05:54):
And this is.
You know.
This change is effective before, on or after the coming into
force of the prohibition onthese things.
So you know aha, know aha,that's it Too bad.
Rogers was the claim.
However, this is theinteresting interpretation issue
.
There's a couple of differentlegal concepts.
One is the concept of a changeaffected by legislation which is
(06:17):
retroactive versus a changewhich is retrospective.
What does that mean?
I don't know.
Well, here's what it means.
If you have a retroactivechange, it affects legal rights
directly for things that havealready happened.
Like it goes back in time andchanges how the law would work.
Okay, a retrospective changewould be like a change that
(06:40):
might affect, like, how thingswould occur.
Like in this case, with acontract that was entered into
in 2015,.
Right, this, you know, tinyprint from 2015.
If the change is retroactive,it goes back in time and changes
what that contract means or howit's enforceable.
If it's retrospective, thechange is simply how that
(07:01):
contract would be interpretedfor things going forward.
It's a subtle change and thereis a principle of statutory
interpretation that says that,unless legislation is clear that
the intent was to make thechange retroactive, it's not.
And so when you think aboutthat I mean you think about it
(07:23):
in this context right, it wouldbe lawful, for you know, there's
the authority to makeretroactive changes to the law
that could affect how thingswould happen, you know,
involving issues that occurredbefore that anyone had even
considered it.
And sort of on one level, hethinks well, that's awfully
unfair, right?
People kind of govern theiraffairs based on what the law is
(07:44):
.
How are you supposed to know ifit's going to change?
You know, 10 years down the roadand there's been some
litigation about that in BritishColumbia and in fact one of the
cases referred to involved theUniversity of British Columbia,
where it became ambiguous as towhether they had any authority
to collect parking fines that'san interesting little tributary
(08:06):
of the law and they werepotentially liable, if they
didn't have authority to do that, to have to give all those
fines back.
They've been collecting foryears from people.
And in that case the governmentenacted legislation that
retroactively empowered theUniversity of British Columbia
to collect fines for parkinginfractions before the
(08:27):
legislation existed.
And in that case, ultimatelythe Court of Appeal upheld that
and they said well, look,there's no constitutional
prohibition on doing that.
You can change things after thefact as long as you're clear
about it.
And in that case legislationwas made clear about it so that
even though the university mighthave collected fines they had
no authority to collect.
The legislature just came alongand retroactively gave them the
(08:50):
authority to do so.
So they got to keep all theparking fines.
Well, unfortunately, here forthe cell phone owner, minus the
million dollars in Bitcoin.
The judge found that thoseprovisions, even though they
speak about contracts enteredinto before, on or after the
coming into effect of thatchange that bans these clauses,
(09:12):
that it wasn't clear enough tomake it retroactive.
It was only retrospective,which means that if you entered
into that one of those cellphone contracts like this poor
person did back in 2015, andsomebody steals your Bitcoin
after getting access to yourphone by calling into some
service kiosk or some other hackwhich might be viewed as sort
(09:34):
of you know, probably thenegligence claim would be like
hey, you probably shouldn't haveyour employees, you know,
giving phone callers screenaccess to the Rogers computer
system.
Right, the reasonable claimthat that's kind of careless or
negligent you would be protectedagainst that arbitration clause
.
If that happened now, eventhough the contract, whenever
(09:56):
you scrolled through the fineprint and hit accept, accept,
accept, so your phone worked,you'd be okay to sue now.
But it doesn't go back andchange the state of affairs for
things like this before thechange, and so the effect of it
is Rogers was successful instopping this person from suing
them and now their remedy is togo through an arbitration
(10:19):
process.
We'll see what remedy they getfrom that.
And then the other interestingthing is that the person argued
well, hold on.
Okay, fine, if Rogers hasoutfoxed us with that argument
here, we should still be able tosue the kiosk, the match people
you know I didn't have any,they didn't scroll through any
tiny fine print with them, itwas just some person you know.
(10:42):
So why should they be preventedfrom doing that?
But the Rogers and match weresuccessful in stopping that too,
and they were successful instopping it on the basis of the
fact that the two claims were sointertwined.
You know who's on the hook forthat?
Match, rogers, you could.
If you had one thing in courtand one thing in arbitration,
you'd have multiple proceedings.
(11:03):
There could be inconsistentresults.
It would waste time andresources.
Those were their arguments andthat carried the day.
And so the effect of this isthat the person will be stuck
with the arbitrator dealing withthe million-dollar claim
against both Match and Rogers.
And so, looking at all this,it's, I think, good from a
(11:25):
consumer point of view thatthese things, which I think have
generally just workedunfairness on consumers, are
banned going forward.
But it may be that this is oneof those cases, like in the UBC
case where they said no, we'reclearly saying you could keep
the fines from before.
It might be one of those caseswhere fairness would dictate a
legislative response to thissaying so clearly this is
(11:47):
retroactive.
Too bad Rogers, too bad largecompanies that stick these
things in here.
You won't be able to get awaywith enforcing them any further,
even if things happen before weplug that hole.
But that's not currently thestate of the law, and so that's
the very latest on Rogersretroactive versus retrospective
and what it means if you're aconsumer and somebody steals a
(12:09):
million dollars by impersonatinga Rogers technician.
So that's the latest from theBC Supreme Court.
Adam Stirling (12:15):
Legally speaking, we'll continue right after this
on CFAX 1070.
Legally speaking continues onCFAX 1070, as we're joined, as
always, by Michael Mulligan,barrister and solicitor, with
Mulligan Defense Lawyers Michaelup next on the agenda.
I'm reading it says BenzogateNike shoes and a very large
crooked nose, not enough toprove ID after the complainant
(12:37):
passes away before trial.
What is happening?
Michael Mulligan (12:41):
Well, once again, nothing good.
So this is a case actually outof Vancouver.
It's an interesting factpattern that deals with the
challenges of identificationevidence in criminal cases,
which I must say is a, we know,a notorious source of convicting
the wrong person.
Right, it can just be hard tocorrectly identify the right
(13:01):
person who's done something.
This particular case was mademore challenging and it's an
assault case because thecomplainant in the case, for
reasons unexplained, passed awayprior to trial.
So there's no.
The Crown nonetheless proceededwith the charge on the basis
(13:22):
that there was a video, like asecurity video, from two
supportive housing buildingsnear where this event occurred,
along with some photographs ofthe scene.
Was whether this videorecording of what transpired and
(13:47):
some still frames from that,was sufficient to establish that
it was the accused whocommitted the assault.
It looked like an allegation ofbadly cutting somebody on the
cheek or bad laceration on thecheek of the person.
And what the Crown did in thiscase, or what the police did, is
that they put up in the policestation a notice about this, I
(14:09):
guess with some pictures, stillframes from it, asking whether
any police officers there couldrecognize the person in the
video or the still frames andone officer in the Vancouver
Police Department said that, yes, they could identify who that
person was.
That person was arrested andcharged, and so that police
(14:33):
officer who had indicated thathe had dealt with the accused on
, I think, two or three prioroccasions on one occasion he
said that he dealt with him forjaywalking it was unclear what
the other occasions were, butclaimed that he had dealt with
this person on some occasions,totaling 45 minutes said that he
could identify that person asbeing the person in this video
(14:56):
of the assault.
And so that police officer cameto court and testified that he
was 100% certain that this wasthe same individual and was then
questioned about some of thereasons of why he thought that.
And so the judge had to analyzethat issue.
But whether that evidence, thatkind of opinion evidence, was
(15:17):
sufficient and I should pausehere to say that generally in a
criminal case, opinion evidenceisn't permissible.
Generally people can testifyabout things they saw or did not
.
An opinion like I think that'sthe guy.
But there is an exception forsome opinion evidence, called
lay opinion evidence, on topicslike, yeah, that's the same
person, or that person looksdrunk the kind of opinion that
(15:39):
somebody with no specialtraining might be able to give,
and the threshold for that issimply whether it might be
helpful.
And so the judge found that,okay, that would certainly be
helpful and so that's going tobe allowed here.
And then the judge identifiedsome of the law concerning
identification evidence anddifferent types of it, and the
judge pointed out there are atleast three different kinds of
(16:01):
identification evidence.
Pointed out there are at leastthree different kinds of
identification evidence.
One kind of identificationevidence is what's referred to
as recognition evidence, whichwould be like somebody who knows
a person well, like somebodylooking at a video or seeing
somebody and saying, yeah,that's my brother, right, with
the idea that you're veryfamiliar with, like how the
person moves and looks and so onright, and that can be a more
(16:21):
reliable type of identificationevidence.
There can also beidentification evidence which is
done through things likeshowing a lineup or like a
sequential series of picturesright.
But there's also a kind ofidentification evidence which
amounts to eyewitness.
Identification evidence by astranger and that's the kind
which long judicial experiencehas taught us is very inherently
(16:45):
unreliable.
And the judge found here thatwhile this police officer had
dealt with the accused on someprevious occasions, it was for
45 minutes various circumstanceswhere the officer didn't have a
lot of detail about what theywere like.
He thought it might have been ajaywalking thing.
He dealt with them on and hefound that this was closer to
the sort of you know strangeridentification than somebody
(17:07):
saying hey, that's my brother onthe video or I just recognize
how he, you know what he lookslike here.
There were some other challengesbecause the judge also looked
very carefully at the video andvery carefully at the man in
court, and the judge concludedhe could not determine that they
were the same person by lookingat the man in court and looking
back and forth at the video,right, and furthermore there
(17:28):
were some things and this can becritical some elements which
don't seem to quite match up andone of the interesting things,
I must say, I do this kind ofwork for a living.
I'm not sure I'd ever heardthis term before, but the judge
said that on the video, theperson on the video who
committed the assault had adistinctive gait, like manner of
walking, and he described itthis way the person on the video
(17:50):
, his gait is pronounced anddistinctive.
In the downtown east side thisgait is known as benzo gait.
It is a physical, hunch-likewalking consistent with a drug
addicts in the downtown eastside Some people may have seen
that, you know you sometimes seesomebody who looks like they're
certainly under the influenceof something kind of hunched
over, I think at the waist, insort of an L-shape, walking
(18:12):
along, physically hunched over,and the judge said look, that's
what the person on the videolooks like.
And the police officer, who'sfamiliar with the accused from
the jaywalking and some otherthings, hadn't noticed anything
unusual about his gait, on leaston the occasions when he dealt
with him.
Another thing that the officertried to rely upon is he said oh
yes, when he had dealt withthis man, he was wearing nike
(18:32):
shoes, uh, which he described ina couple occasions as having a
black swoosh, uh, and then latersaid hold on, no, no, I
misspoke, a white swo, a whiteswoosh, a white swoosh.
And so saying well, you know,the person in the video had a
white swoosh on his shoes.
And so the judge pointed outwell, of course the officer had
(18:55):
twice said that the person hedealt with had a black swoosh,
before claiming he misspokeabout that, but then also
pointing out that, you know,this is probably a little bit of
judicial notice that Nike shoesare pretty common and pointing
out that all kinds of peoplewear them, the judge went on to
say including world-classathletes, that maybe you can
take judicial notice of that.
So, in any case, with all ofthat, the judge said look, this
just isn't enough, right, youmight have persuaded him that
(19:20):
probably it was the same person.
Certainly there were somecharacteristics which look
similar, but pointing out thingslike you know a person's nose
or that they wore Nike shoes onsome occasion, just wasn't
enough to do it.
There's nothing else connectingthese people, right?
And there's no complainantthere, it's just this officer
saying yeah, that's the person Ithink that I've dealt with on
(19:41):
some other occasions.
I'm really certain.
But, as the judge correctlypointed out, the degree of
certainty of a witness is not anindication of how reliable they
are.
Right.
Somebody can be really, reallysure, and that doesn't
necessarily make it so, and soit's an example of how
eyewitness evidence is used.
And that interesting concept ofthe Benzo gate combined with
(20:01):
Nike shoes just wasn't enough,and so the man was found not
guilty.
That's the latest from theprovincial court.
Adam Stirling (20:08):
Legally speaking, during the second half of our
second hour every Thursday.
Michael Mulligan, thank you somuch as always.
Michael Mulligan (20:14):
Thank you so much.
It's always great to be here.
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