April 17, 2025 • 19 mins
The boundaries between student life and financial freedom come under scrutiny in this fascinating examination of a groundbreaking Supreme Court of Canada decision. When does your status as a "student" truly end? According to Canada's highest court, returning to school—even part-time and self-funded—resets the seven-year countdown clock that protects government student loans from bankruptcy proceedings.
Through a split 6-3 decision, the court delves into the subtle nuances of legal language, including how the French version of Canadian law influenced their interpretation. The case presents a sobering reality for those hoping to discharge student debt through bankruptcy: even brief returns to education could extend the period during which these loans remain protected, regardless of how many years have passed since the original borrowing.
We also explore a high-profile Victoria murder case appeal that examines the legal distinction between different paths to first-degree murder charges. The court's analysis reveals how planning and deliberation carry a different standard of participation than murders committed during other serious offences like forcible confinement—a nuanced difference that upheld the conviction in this tragic case, where two escaped prisoners killed a man in his own home.
The conversation concludes with an examination of what legally constitutes a "firearm" under Canadian law, determining that a handgun tested without its original magazine still qualifies as a firearm if it can function with alternative components. This technical but significant ruling emphasizes a weapon's capability over its specific configuration at the time of seizure.
These cases collectively illuminate how judicial interpretation of seemingly straightforward legal language can profoundly impact real lives, whether determining the dischargeability of student debt, the severity of murder charges, or what constitutes a regulated weapon. Subscribe to hear more analyses of how the law affects everyday Canadians in unexpected ways.
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.
It's Michael Mulligan, legallyspeaking, here on CFAX 1070.
Afternoon, michael, how are wedoing?
Hey, good afternoon, I'm doinggreat.
Michael Mulligan (00:12):
Always good to be here Some really interesting
stories on the agenda.
Adam Stirling (00:14):
Today I'm reading a case from the Supreme Court
of Canada to do with studentloans and bankruptcy.
That grapples with, among otherthings, the question do you
stop being a student and, if so,when does that happen?
Michael Mulligan (00:27):
Do we ever really stop being a student?
Maybe not.
So this is a really interestingcase.
It just came out this morningfrom the Supreme Court of Canada
and it's a case that originatedin British Columbia and the
case involves how the Bankruptcyand Insolvency Act works.
And I should say that in Canadabankruptcy is a federal
(00:48):
jurisdiction.
It's right there in theConstitution Act, even though
most other sort ofproperty-related things are
provincial, and so that act theBankruptcy and Insolvency Act,
the idea behind it, is to allowpeople basically at some point
Involvency Act the idea behindit is to allow people basically
at some point if they get in sofar over their head they're
never going to be able to payoff their debts to kind of get a
(01:08):
clean break.
You get to start again, right.
But we have some exceptions tothat, and one of the interesting
exceptions is an exception thatprevents government student
loans, government beingimportant.
I guess Student loans areprivate ones, aren't covered by
this, but government studentloans the presumptively going
(01:31):
bankrupt doesn't wipe out agovernment student loan, unless
it's.
You've not been a student forseven years Now.
The reason for that, or one ofthe policy reasons for that,
might be, of course, you know,if somebody you wouldn't want,
somebody, for example, you know,going to school for many years,
becoming a I don't know medicaldoctor after many years of
(01:52):
education, taking out hugestudent loans, and then, as soon
as they finish university, withno assets and a giant student
loan debt, just saying I'mbankrupt, and then having that
all wiped away, you might say,well, that's not fair.
You're going to have thebenefit of that education for a
very long time.
And so the bankruptcy andinsolvency act provides that if
(02:14):
somebody has been a studentwithin the past seven years, you
don't.
Your student government studentloans don't get wiped out by a
bankruptcy.
Now sounds clear, but humanaffairs are, of course,
complicated, and here's thisfact pattern with the British
Columbia connection.
(02:35):
The person who entered into aconsumer proposal under the
Bankruptcy and Insolvency Acthad taken a bachelor's degree
between 1987 and 1994, gotstudent loans for that and then
immediately did a teachingdiploma.
Student loans for that.
Okay, so far, so clear.
Now a number of years went bywith working and then the person
(03:01):
decided to pursue a master's ineducation and did that between
2006 and 2009.
And for that they took nostudent loans.
Okay, they then entered intothis consumer proposal in 2013
to go bankrupt.
So here's the question it's beenmore than like well, more than
(03:24):
seven years from the time thisperson took out the student
loans to do their bachelor'sdegree and their teaching
diploma, but they'd gone back toschool, part-time, self-funded,
to do this master's degree.
Were they a student?
Have they passed seven years?
And the argument they made isthey said well, you know, this
(03:45):
should be analyzed from.
You know different dates.
And they argued well, you know,we're talking about student
loans for this degree from backin you know the teaching diploma
that ended in 1995.
And so that's more than sevenyears from 2013.
Why should the fact that theywent back to do another degree
mean that, once again, thestudent loans have become exempt
(04:07):
from bankruptcy?
Well, that's the issue that gotto the Supreme Court of Canada
and it involved a statutoryinterpretation of the wording
there.
And the Supreme Court of Canadasplit.
It's an example of toughdecisions.
Right, the Supreme Court ofCanada split 6-3, and three of
the judges in dissent said well,you know that doesn't make any
(04:29):
sense, that the fact this personwent back to school to do
another degree, which they paidfor themselves and didn't borrow
any more money, would thenreset the time period.
And they said well, it couldlead to absurd results.
(04:59):
What if somebody did like adegree and then 20 years passed
and they still hadn't paid offtheir student loan for some
reason, and then they went backto school for six months?
Are they then captured by thatprovision?
They said that's legislation.
They pointed out that thelegislation uses the term
student and loan singular, whichdoesn't seem to comport with
the idea there could bedifferent time periods for
different student endeavors.
And the other interesting thingthat the Supreme Court of Canada
the majority pointed to is thefact that in Canada federal laws
(05:22):
are all both in English andFrench and they are equally
authoritative.
But language is really subtle,particularly legal analysis, and
in this case the French version.
The language was morerestrictive than the English
language.
Like in a related provision,the French version said the
borrower it translated toEnglish must not have been a
(05:45):
student under the applicable lawfor the preceding number of
years.
And so they said well, that'sequally authoritative and that's
more restrictive.
And so the majority determinedthat no, if you have become a
student, whether full orpart-time and that's the other
interesting thing this personwho went bankrupt they had been
(06:06):
working and they did theirmaster's degree, part-time,
paying for it themselves, butthat's still student because
it's full or part-time.
And so the effect of this isthat, even though it was well
past seven years the time of thebankruptcy from the time the
money was borrowed, the factthat the person went back to
school to do the master's degreemeant that the student loans
(06:27):
were exempt from the bankruptcyproceeding and they will have to
be repaid.
And so, while we all may bestudents for a very long time,
that may have a real impact.
If somebody finds themselves ina position where they can't pay
their debts presumptively,those student loans are not
going to be covered by thebankruptcy proceeding, and so
(06:48):
going back to school has a realimpact, even if that's for a
short time, and even if youdon't borrow any more money.
It means that those other loansare going to stick with you,
according to the six judges fromthe Supreme Court of Canada.
So that's the latest thismorning from the Supreme Court
of Canada on how bankruptcy isaffected by being a student.
Adam Stirling (07:09):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking, will continueright after this.
Back on the air here at CFAX1070 Michael Mulligan with
Mulligan Defense Lawyers,legally speaking.
As we continue, what's next onour agenda today?
Michael?
Michael Mulligan (07:22):
Next on our agenda is a notorious Victoria
case and an appeal decision onit.
It's one that I think manylisteners would be familiar with
.
This tragic case from 2019,where those two men broke out of
William Head Penitentiary andit eventually resulted in the
murder of a man in his own home.
(07:42):
So just a terrible local case.
Just to review some of thosefacts which will be important to
this appeal decision.
The case involved the man'shouse being broken into.
Case involved the man's housebeing broken into, and then it
would appear that the peoplewere in the home for an extended
period of time, throughout theday, and there was evidence in
(08:10):
the home of things, including aGoogle search for one of their
names on the person's computerwhile they were at work and
looking at local news reports to, I guess, see whether there was
information about the escape onthere.
News reports to, I guess, seewhether there was information
about the escape on there.
And then, eventually, in thehome, various things, along with
the deceased, who was foundwith his hands duct taped.
Various things were found,including two axe handles, two
pairs of bloody gloves, twowalkie talkies and various other
things, and the trial proceeded, with one of the men choosing
(08:35):
to plead guilty after the trialhas started, but the other man
continuing with the trial thatman, as it happens, was one of
them, who was when he wasarrested a day later was found
wearing the ball cap of thedeceased and carrying his
backpack.
Not good, no-transcript,no-transcript.
(09:24):
You know, make sure you applythe law as I describe it to you,
because if I'm mistaken, if I'mwrong and you do what I'm
saying, that could be fixed onan appeal, but if you do
something else, we can't fixthat.
That's one of the things thatjudges will tell juries.
Right, listen to me on the law,right.
And so appeals are often ananalysis of what did the judge
(09:44):
tell the jury to do and was itcorrect?
Did they give them properinstructions?
Because we assume that juriesare going to do what they're
told and follow the laws thejudge laid out for them.
And the other interestingelement of this some people may
not know about, but most peoplewould be familiar with the idea
(10:05):
that in a criminal case, a juryhas to be unanimous.
They all have to agree on theverdict guilty or not guilty but
juries don't have to agree onhow they reach their decisions
and Crown counsel are permittedto have more than one theory of
the case, which is also reallyinteresting.
Adam Stirling (10:19):
Yeah.
Michael Mulligan (10:20):
And here the crown had more than one theory.
Uh, the, the crown's firstcentral theory was the idea that
these two men committed themurder together.
Right, um, and they, they wereboth participants in the killing
.
Looking at things like, hey,there are two ax handles and
there are two pairs of bloodygloves and all all of this,
right, and they were bothparticipants in the killing.
Looking at things like, hey,there are two axe handles and
there are two pairs of bloodygloves and all of this, right,
(10:40):
and you were.
And the plan and their theorywas that they did it together.
And their theory, their primarytheory, was that the it was
first degree murder because itwas planned and deliberate.
Most people are familiar withthat idea too.
Right, that's one of that's themost common way that a murder
can go from second degree tofirst degree the idea that it's
planned and deliberate.
(11:01):
We view that as more seriousrather than something kind of
happening on the quick.
Right.
It's the most serious thing Ifyou've sat around, schemed about
it all day, got your axe headsready, got your gloves ready and
then did something right.
That's more serious than just,you know, something snapped.
So that was the first theorythat the Crown argued to the
jury and the judge instructedthem on that.
(11:22):
But the Crown had a backuptheory.
Their second theory was afirst-degree murder was okay.
Well, if you're not persuadedbeyond a reasonable doubt that
these two people had plannedtogether the murder They've both
done that Then there's anotherway, or there's more than one
way, you can get to first degreemurder.
(11:42):
And one of the other ways youcan a murder can become first
degree rather than second is ifthe murder is caused by somebody
, well, they are also committinganother offense.
And there's a list of otheroffenses.
They include things likehijacking an aircraft, sexual
assault or the one relevant here, kidnapping or forcible
(12:07):
confinement and the reason thatand that's a different way a
murder can become first degreerather than second.
And the Crown's alternate theorywas well, even if you are not
satisfied that this man wasinvolved in planning and
deliberation, because there wassome evidence that was less
strong against him, like, forexample, the man who pled guilty
(12:30):
.
He was the person whose namewas being searched on the
computer that day, right, andhis fingerprints were found in
the house.
The other man no fingerprintsin the house and no indication.
He was searched on the computerthat day, right, and his
fingerprints were found in thehouse.
The other man no fingerprintsin the house and no indication
he was searching on the computer.
So one of the arguments made bythe defense was well, maybe
he'd been outside, maybe he'dbeen somewhere else in the
walkie-talkie, you know, maybehe'd only showed up there after
the murder had occurred, right?
(12:51):
But the Crown's alternativetheory for this man was it's
still first-degree murder on thebasis that the man had been, it
would appear, clearly forciblyconfined.
He's duct-taped, right.
Adam Stirling (13:03):
Yes.
Michael Mulligan (13:03):
And so the Crown's argument was well, look,
even if you're not persuadedthat the man who continued on
trial was involved in planningand deliberation, you know,
maybe he'd been outside, maybehe was on the walkie-talkie who
knows on the walkie-talkie, whoknows?
You know, if you're notpersuaded by our argument that
he likely did it because thereare two of these things in there
, right then you should stillconvict him of first-degree
murder on the basis that hecaused the man's death while
(13:26):
there was a forcible confinementgoing on, and so the judge
provided that to the jury as analternative.
Well, if you're not satisfiedit was planning and deliberation
by this man as well, then youneed to go on to analyze that
theory of it.
Now here's the interestingthing about that different way
you can get to first-degreemurder.
When you that subsection thatdeals with how you can get to
(13:49):
first degree murder whilecommitting other offenses uses
the language that the death iscaused by that person while
committing or attempting tocommit an offense, Supreme Court
of Canada has said well, causedby that person, because that
(14:10):
language is used there.
That means something more thanjust like some minor
contributing factor.
Right, the parliament has seenfit to use the language caused
by the person, right?
So the crown for thatalternative theory of well, this
was, well, there's enforceableconfinement requires proof of
(14:31):
more than just well, you werekind of standing by the door or
something.
You know what I mean.
You have to be.
You caused it in a significantway, and that's sometimes
referred to as like sort of anenhanced degree of participation
being required.
(15:01):
And the argument made by thedefense was well, that's all
fine and well, that needing tobe caused by that person should
be applied to that the usual waythat you would get to first
degree murder planning anddeliberation.
And so the argument made by thedefense on the appeal was that
same kind of higher degree ofparticipation right, the sort of
(15:24):
really caused by that person,not just some minor contributing
factor to what happened, shouldhave been what the jury was
told to do when deciding whetherthere was first-degree rather
than second-degree murdercommitted here on the basis of
planning and deliberation.
And it was a novel argument, Ishould say, as the Court of
Appeal pointed out, there's noprior case that's decided that.
(15:47):
And so the Court of Appeal wenton to analyze the sort of
principles why is it that wehave that sort of higher degree
of participation and theyanalyzed it in contrast with and
how that fits in with otherthings like the idea of a person
being a party to an offensegenerally.
And what is the why was thatinterpreted that way?
(16:10):
And ultimately the Court ofAppeal found that, even though
the judge did not tell the jurythat for planning and
deliberation there has to be,you know, caused by this sort of
higher degree of participation,the Court of Appeal found that
was quite proper.
And because those two sectionsright one is subsection three of
(16:31):
section 231, the other issubsection five of section 231,
only in that second one, the onethat makes it first degree if
you cause the death in thecourse of committing those other
offenses, only in that occasionhas Parliament used that term
caused by the person.
And so for that reason there isno necessity that there be sort
(16:52):
of an enhanced degree ofparticipation that would apply
to the idea of planning anddeliberation.
And so, while it was a novelargument and that was really the
only focus of the appeal, thatwas sort of a narrow focus on
that narrow legal issue abouthow the judge instructed the
jury that that wasn't enough tocause there to need to be a new
(17:15):
trial and that the instructionsgiven by the judge were correct,
because those two differentways you can get to first degree
murder, one has that higherprovision and the other doesn't,
and so that's why there will beno new trial in that local case
, the tragic case of this manwho was murdered in his own home
.
Adam Stirling (17:33):
All right, we've got 90 seconds remaining.
How shall we spend them?
Michael Mulligan (17:36):
Sure.
Final one's an interestingbrief decision, also in BC, out
of BC, that deals with theactually relies on a B case.
It's another Supreme Court ofCanada judgment that deals with
the issue of what is a firearm,what is necessary for a thing to
be a firearm under the criminalcode?
(17:56):
The fact pattern is car wasstopped, gun is found in the
vehicle.
It's a handgun.
The handgun at the time had amagazine in it and ammunition.
The police, for reasonsunexplained, didn't send off the
magazine or ammunition to betested.
They only sent the handgun offto be tested.
So the lab gets the handgun andthey test it using their own
(18:20):
magazine and ammunition.
It works.
But at the trial the expert fromthe lab about whether this was
a firearm expert from the lababout whether this was a firearm
says that look, this particularhandgun has a safety feature
that makes it extremelydifficult to fire if you don't
have a magazine inserted into it.
And so the trial judge acquittedand said well, I'm just not
(18:41):
satisfied, this thing is afirearm because of the
definition of what that is interms of the device being able
to operate and fire.
But on appeal, and theneventually to the Supreme Court
of Canada, they concluded thatwasn't the correct approach,
bearing in mind that there wassome other evidence about the
fact that this thing couldfunction, or being adapted to
(19:03):
function, readily, including thefact that the man, when he was
arrested, made a comment abouthaving previously used the
firearm at a gun range, and sothat was some indication that
the thing worked, even withouthaving tested the magazine, and
given the fact that the way thatdefinition of firearms works in
the criminal code, the factthat it was able to work with a
(19:25):
magazine from the testingfacility was enough, and that
did meet the definition of whata firearm is.
So that's the latest from theSupreme Court of Canada on what
a firearm is, even if they don'ttest the thing with the actual
magazine or the ammunition thatit was found with.
Adam Stirling (19:39):
Michael Mulligan, with Legally Speaking during
the second half of our secondhour every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
It's time for our regular segment, joined as
always by barrister andsolicitor, with Mulligan Defence
Lawyers.
It's Michael Mulligan, legallyspeaking, here on CFAX 1070.
Afternoon, michael, how are wedoing?
Hey, good afternoon, I'm doinggreat.
Michael Mulligan (00:12):
Always good to be here Some really interesting
stories on the agenda.
Adam Stirling (00:14):
Today I'm reading a case from the Supreme Court
of Canada to do with studentloans and bankruptcy.
That grapples with, among otherthings, the question do you
stop being a student and, if so,when does that happen?
Michael Mulligan (00:27):
Do we ever really stop being a student?
Maybe not.
So this is a really interestingcase.
It just came out this morningfrom the Supreme Court of Canada
and it's a case that originatedin British Columbia and the
case involves how the Bankruptcyand Insolvency Act works.
And I should say that in Canadabankruptcy is a federal
(00:48):
jurisdiction.
It's right there in theConstitution Act, even though
most other sort ofproperty-related things are
provincial, and so that act theBankruptcy and Insolvency Act,
the idea behind it, is to allowpeople basically at some point
Involvency Act the idea behindit is to allow people basically
at some point if they get in sofar over their head they're
never going to be able to payoff their debts to kind of get a
(01:08):
clean break.
You get to start again, right.
But we have some exceptions tothat, and one of the interesting
exceptions is an exception thatprevents government student
loans, government beingimportant.
I guess Student loans areprivate ones, aren't covered by
this, but government studentloans the presumptively going
(01:31):
bankrupt doesn't wipe out agovernment student loan, unless
it's.
You've not been a student forseven years Now.
The reason for that, or one ofthe policy reasons for that,
might be, of course, you know,if somebody you wouldn't want,
somebody, for example, you know,going to school for many years,
becoming a I don't know medicaldoctor after many years of
(01:52):
education, taking out hugestudent loans, and then, as soon
as they finish university, withno assets and a giant student
loan debt, just saying I'mbankrupt, and then having that
all wiped away, you might say,well, that's not fair.
You're going to have thebenefit of that education for a
very long time.
And so the bankruptcy andinsolvency act provides that if
(02:14):
somebody has been a studentwithin the past seven years, you
don't.
Your student government studentloans don't get wiped out by a
bankruptcy.
Now sounds clear, but humanaffairs are, of course,
complicated, and here's thisfact pattern with the British
Columbia connection.
(02:35):
The person who entered into aconsumer proposal under the
Bankruptcy and Insolvency Acthad taken a bachelor's degree
between 1987 and 1994, gotstudent loans for that and then
immediately did a teachingdiploma.
Student loans for that.
Okay, so far, so clear.
Now a number of years went bywith working and then the person
(03:01):
decided to pursue a master's ineducation and did that between
2006 and 2009.
And for that they took nostudent loans.
Okay, they then entered intothis consumer proposal in 2013
to go bankrupt.
So here's the question it's beenmore than like well, more than
(03:24):
seven years from the time thisperson took out the student
loans to do their bachelor'sdegree and their teaching
diploma, but they'd gone back toschool, part-time, self-funded,
to do this master's degree.
Were they a student?
Have they passed seven years?
And the argument they made isthey said well, you know, this
(03:45):
should be analyzed from.
You know different dates.
And they argued well, you know,we're talking about student
loans for this degree from backin you know the teaching diploma
that ended in 1995.
And so that's more than sevenyears from 2013.
Why should the fact that theywent back to do another degree
mean that, once again, thestudent loans have become exempt
(04:07):
from bankruptcy?
Well, that's the issue that gotto the Supreme Court of Canada
and it involved a statutoryinterpretation of the wording
there.
And the Supreme Court of Canadasplit.
It's an example of toughdecisions.
Right, the Supreme Court ofCanada split 6-3, and three of
the judges in dissent said well,you know that doesn't make any
(04:29):
sense, that the fact this personwent back to school to do
another degree, which they paidfor themselves and didn't borrow
any more money, would thenreset the time period.
And they said well, it couldlead to absurd results.
(04:59):
What if somebody did like adegree and then 20 years passed
and they still hadn't paid offtheir student loan for some
reason, and then they went backto school for six months?
Are they then captured by thatprovision?
They said that's legislation.
They pointed out that thelegislation uses the term
student and loan singular, whichdoesn't seem to comport with
the idea there could bedifferent time periods for
different student endeavors.
And the other interesting thingthat the Supreme Court of Canada
the majority pointed to is thefact that in Canada federal laws
(05:22):
are all both in English andFrench and they are equally
authoritative.
But language is really subtle,particularly legal analysis, and
in this case the French version.
The language was morerestrictive than the English
language.
Like in a related provision,the French version said the
borrower it translated toEnglish must not have been a
(05:45):
student under the applicable lawfor the preceding number of
years.
And so they said well, that'sequally authoritative and that's
more restrictive.
And so the majority determinedthat no, if you have become a
student, whether full orpart-time and that's the other
interesting thing this personwho went bankrupt they had been
(06:06):
working and they did theirmaster's degree, part-time,
paying for it themselves, butthat's still student because
it's full or part-time.
And so the effect of this isthat, even though it was well
past seven years the time of thebankruptcy from the time the
money was borrowed, the factthat the person went back to
school to do the master's degreemeant that the student loans
(06:27):
were exempt from the bankruptcyproceeding and they will have to
be repaid.
And so, while we all may bestudents for a very long time,
that may have a real impact.
If somebody finds themselves ina position where they can't pay
their debts presumptively,those student loans are not
going to be covered by thebankruptcy proceeding, and so
(06:48):
going back to school has a realimpact, even if that's for a
short time, and even if youdon't borrow any more money.
It means that those other loansare going to stick with you,
according to the six judges fromthe Supreme Court of Canada.
So that's the latest thismorning from the Supreme Court
of Canada on how bankruptcy isaffected by being a student.
Adam Stirling (07:09):
Michael Mulligan with Mulligan Defense Lawyers,
legally speaking, will continueright after this.
Back on the air here at CFAX1070 Michael Mulligan with
Mulligan Defense Lawyers,legally speaking.
As we continue, what's next onour agenda today?
Michael?
Michael Mulligan (07:22):
Next on our agenda is a notorious Victoria
case and an appeal decision onit.
It's one that I think manylisteners would be familiar with
.
This tragic case from 2019,where those two men broke out of
William Head Penitentiary andit eventually resulted in the
murder of a man in his own home.
(07:42):
So just a terrible local case.
Just to review some of thosefacts which will be important to
this appeal decision.
The case involved the man'shouse being broken into.
Case involved the man's housebeing broken into, and then it
would appear that the peoplewere in the home for an extended
period of time, throughout theday, and there was evidence in
(08:10):
the home of things, including aGoogle search for one of their
names on the person's computerwhile they were at work and
looking at local news reports to, I guess, see whether there was
information about the escape onthere.
News reports to, I guess, seewhether there was information
about the escape on there.
And then, eventually, in thehome, various things, along with
the deceased, who was foundwith his hands duct taped.
Various things were found,including two axe handles, two
pairs of bloody gloves, twowalkie talkies and various other
things, and the trial proceeded, with one of the men choosing
(08:35):
to plead guilty after the trialhas started, but the other man
continuing with the trial thatman, as it happens, was one of
them, who was when he wasarrested a day later was found
wearing the ball cap of thedeceased and carrying his
backpack.
Not good, no-transcript,no-transcript.
(09:24):
You know, make sure you applythe law as I describe it to you,
because if I'm mistaken, if I'mwrong and you do what I'm
saying, that could be fixed onan appeal, but if you do
something else, we can't fixthat.
That's one of the things thatjudges will tell juries.
Right, listen to me on the law,right.
And so appeals are often ananalysis of what did the judge
(09:44):
tell the jury to do and was itcorrect?
Did they give them properinstructions?
Because we assume that juriesare going to do what they're
told and follow the laws thejudge laid out for them.
And the other interestingelement of this some people may
not know about, but most peoplewould be familiar with the idea
(10:05):
that in a criminal case, a juryhas to be unanimous.
They all have to agree on theverdict guilty or not guilty but
juries don't have to agree onhow they reach their decisions
and Crown counsel are permittedto have more than one theory of
the case, which is also reallyinteresting.
Adam Stirling (10:19):
Yeah.
Michael Mulligan (10:20):
And here the crown had more than one theory.
Uh, the, the crown's firstcentral theory was the idea that
these two men committed themurder together.
Right, um, and they, they wereboth participants in the killing
.
Looking at things like, hey,there are two ax handles and
there are two pairs of bloodygloves and all all of this,
right, and they were bothparticipants in the killing.
Looking at things like, hey,there are two axe handles and
there are two pairs of bloodygloves and all of this, right,
(10:40):
and you were.
And the plan and their theorywas that they did it together.
And their theory, their primarytheory, was that the it was
first degree murder because itwas planned and deliberate.
Most people are familiar withthat idea too.
Right, that's one of that's themost common way that a murder
can go from second degree tofirst degree the idea that it's
planned and deliberate.
(11:01):
We view that as more seriousrather than something kind of
happening on the quick.
Right.
It's the most serious thing Ifyou've sat around, schemed about
it all day, got your axe headsready, got your gloves ready and
then did something right.
That's more serious than just,you know, something snapped.
So that was the first theorythat the Crown argued to the
jury and the judge instructedthem on that.
(11:22):
But the Crown had a backuptheory.
Their second theory was afirst-degree murder was okay.
Well, if you're not persuadedbeyond a reasonable doubt that
these two people had plannedtogether the murder They've both
done that Then there's anotherway, or there's more than one
way, you can get to first degreemurder.
(11:42):
And one of the other ways youcan a murder can become first
degree rather than second is ifthe murder is caused by somebody
, well, they are also committinganother offense.
And there's a list of otheroffenses.
They include things likehijacking an aircraft, sexual
assault or the one relevant here, kidnapping or forcible
(12:07):
confinement and the reason thatand that's a different way a
murder can become first degreerather than second.
And the Crown's alternate theorywas well, even if you are not
satisfied that this man wasinvolved in planning and
deliberation, because there wassome evidence that was less
strong against him, like, forexample, the man who pled guilty
(12:30):
.
He was the person whose namewas being searched on the
computer that day, right, andhis fingerprints were found in
the house.
The other man no fingerprintsin the house and no indication.
He was searched on the computerthat day, right, and his
fingerprints were found in thehouse.
The other man no fingerprintsin the house and no indication
he was searching on the computer.
So one of the arguments made bythe defense was well, maybe
he'd been outside, maybe he'dbeen somewhere else in the
walkie-talkie, you know, maybehe'd only showed up there after
the murder had occurred, right?
(12:51):
But the Crown's alternativetheory for this man was it's
still first-degree murder on thebasis that the man had been, it
would appear, clearly forciblyconfined.
He's duct-taped, right.
Adam Stirling (13:03):
Yes.
Michael Mulligan (13:03):
And so the Crown's argument was well, look,
even if you're not persuadedthat the man who continued on
trial was involved in planningand deliberation, you know,
maybe he'd been outside, maybehe was on the walkie-talkie who
knows on the walkie-talkie, whoknows?
You know, if you're notpersuaded by our argument that
he likely did it because thereare two of these things in there
, right then you should stillconvict him of first-degree
murder on the basis that hecaused the man's death while
(13:26):
there was a forcible confinementgoing on, and so the judge
provided that to the jury as analternative.
Well, if you're not satisfiedit was planning and deliberation
by this man as well, then youneed to go on to analyze that
theory of it.
Now here's the interestingthing about that different way
you can get to first-degreemurder.
When you that subsection thatdeals with how you can get to
(13:49):
first degree murder whilecommitting other offenses uses
the language that the death iscaused by that person while
committing or attempting tocommit an offense, Supreme Court
of Canada has said well, causedby that person, because that
(14:10):
language is used there.
That means something more thanjust like some minor
contributing factor.
Right, the parliament has seenfit to use the language caused
by the person, right?
So the crown for thatalternative theory of well, this
was, well, there's enforceableconfinement requires proof of
(14:31):
more than just well, you werekind of standing by the door or
something.
You know what I mean.
You have to be.
You caused it in a significantway, and that's sometimes
referred to as like sort of anenhanced degree of participation
being required.
(15:01):
And the argument made by thedefense was well, that's all
fine and well, that needing tobe caused by that person should
be applied to that the usual waythat you would get to first
degree murder planning anddeliberation.
And so the argument made by thedefense on the appeal was that
same kind of higher degree ofparticipation right, the sort of
(15:24):
really caused by that person,not just some minor contributing
factor to what happened, shouldhave been what the jury was
told to do when deciding whetherthere was first-degree rather
than second-degree murdercommitted here on the basis of
planning and deliberation.
And it was a novel argument, Ishould say, as the Court of
Appeal pointed out, there's noprior case that's decided that.
(15:47):
And so the Court of Appeal wenton to analyze the sort of
principles why is it that wehave that sort of higher degree
of participation and theyanalyzed it in contrast with and
how that fits in with otherthings like the idea of a person
being a party to an offensegenerally.
And what is the why was thatinterpreted that way?
(16:10):
And ultimately the Court ofAppeal found that, even though
the judge did not tell the jurythat for planning and
deliberation there has to be,you know, caused by this sort of
higher degree of participation,the Court of Appeal found that
was quite proper.
And because those two sectionsright one is subsection three of
(16:31):
section 231, the other issubsection five of section 231,
only in that second one, the onethat makes it first degree if
you cause the death in thecourse of committing those other
offenses, only in that occasionhas Parliament used that term
caused by the person.
And so for that reason there isno necessity that there be sort
(16:52):
of an enhanced degree ofparticipation that would apply
to the idea of planning anddeliberation.
And so, while it was a novelargument and that was really the
only focus of the appeal, thatwas sort of a narrow focus on
that narrow legal issue abouthow the judge instructed the
jury that that wasn't enough tocause there to need to be a new
(17:15):
trial and that the instructionsgiven by the judge were correct,
because those two differentways you can get to first degree
murder, one has that higherprovision and the other doesn't,
and so that's why there will beno new trial in that local case
, the tragic case of this manwho was murdered in his own home
.
Adam Stirling (17:33):
All right, we've got 90 seconds remaining.
How shall we spend them?
Michael Mulligan (17:36):
Sure.
Final one's an interestingbrief decision, also in BC, out
of BC, that deals with theactually relies on a B case.
It's another Supreme Court ofCanada judgment that deals with
the issue of what is a firearm,what is necessary for a thing to
be a firearm under the criminalcode?
(17:56):
The fact pattern is car wasstopped, gun is found in the
vehicle.
It's a handgun.
The handgun at the time had amagazine in it and ammunition.
The police, for reasonsunexplained, didn't send off the
magazine or ammunition to betested.
They only sent the handgun offto be tested.
So the lab gets the handgun andthey test it using their own
(18:20):
magazine and ammunition.
It works.
But at the trial the expert fromthe lab about whether this was
a firearm expert from the lababout whether this was a firearm
says that look, this particularhandgun has a safety feature
that makes it extremelydifficult to fire if you don't
have a magazine inserted into it.
And so the trial judge acquittedand said well, I'm just not
(18:41):
satisfied, this thing is afirearm because of the
definition of what that is interms of the device being able
to operate and fire.
But on appeal, and theneventually to the Supreme Court
of Canada, they concluded thatwasn't the correct approach,
bearing in mind that there wassome other evidence about the
fact that this thing couldfunction, or being adapted to
(19:03):
function, readily, including thefact that the man, when he was
arrested, made a comment abouthaving previously used the
firearm at a gun range, and sothat was some indication that
the thing worked, even withouthaving tested the magazine, and
given the fact that the way thatdefinition of firearms works in
the criminal code, the factthat it was able to work with a
(19:25):
magazine from the testingfacility was enough, and that
did meet the definition of whata firearm is.
So that's the latest from theSupreme Court of Canada on what
a firearm is, even if they don'ttest the thing with the actual
magazine or the ammunition thatit was found with.
Adam Stirling (19:39):
Michael Mulligan, with Legally Speaking during
the second half of our secondhour every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
Popular Podcasts
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Follow now to get the latest episodes of Dateline NBC completely free, or subscribe to Dateline Premium for ad-free listening and exclusive bonus content: DatelinePremium.com
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!