September 4, 2025 • 21 mins
Fentanyl trafficking sentences in BC just got a major overhaul. The BC Court of Appeal has mapped out clearer sentencing guidelines, creating a three-tier system that reflects the devastating impact of the deadly opioid crisis. Street-level dealers now face 18 months to 3 years, mid-level traffickers 4-7 years, and wholesale distributors 8-15 years behind bars. The Court emphasized this framework still allows judges to tailor sentences to individual circumstances, but makes clear that the gravity of fentanyl trafficking demands serious consequences. With over 14,500 British Columbians having lost their lives to toxic drugs in just eight years, the justice system is responding with a structured approach to punishment.
At Simon Fraser University, academic freedom and freedom of association collided when faculty members challenged their own Faculty Association's resolutions on Gaza. The controversial statements narrowly passed but sparked a legal battle under the Societies Act. The case highlights a fascinating tension - what happens when you're required to belong to an organization that takes political positions you fundamentally oppose? The court ultimately allowed the Faculty Association broad latitude in its activities, continuing a precedent that permits professional associations to venture beyond their core employment-related purposes. This ruling affects anyone in Canada who must maintain membership in unions or professional organizations.
We wrap up with a constructive dismissal case that seems straight out of a comedy sketch - except it was all too real for the employee involved. A 63-year-old comptroller was given notice of termination but required to keep working for eight months while being gradually replaced by someone actually named "Mr. Bean." Adding insult to injury, the employee was relocated to an interior office without air conditioning (at an air conditioning company!). The court recognized these cumulative actions created an intolerable work environment, awarding 15 months' severance and confirming employers cannot circumvent termination obligations by making work conditions unbearable.
Have questions about how these legal developments might affect you? We'd love to hear your thoughts on these fascinating intersections of law and everyday life. Subscribe to catch our weekly legal insights and join the conversation about how our justice system continues to evolve.
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 with barrister
and solicitor with MulliganDefence Lawyers.
It's Legally Speaking on CFAX1070 with Michael Mulligan,
Afternoon.
Michael, how are we doing?
Hey, good afternoon.
Michael Mulligan (00:11):
I'm doing great.
Always good to be here.
Adam Stirling (00:12):
Some interesting topics on the agenda today.
Off the top, it says the BCCourt of Appeal provides further
guidance with respect tosentences for fentanyl
trafficking.
What's the story?
Michael Mulligan (00:26):
Well, the first thing about this is it
gives some insight into how dojudges come up with sentences
and how do we try to make surethat they're similar, that kind
of thing.
And, of course, the justicesystem in Canada is a hierarchy
right.
Lower level judges have tolisten to what higher court
judges have to say, and so in BC, the BC Court of Appeal will,
in some circumstances, provideguidance for trial judges about
(00:50):
what sort of range of sentencemight be appropriate for a
particular type of offense.
And the idea, or one of theideas there, of course, is that
we want to have some consistencyso you don't wind up with
completely arbitrary outcomes indifferent cases for different
people with similar factpatterns.
Right Now, the next thing toknow is that the Court of Appeal
(01:12):
doesn't lightly interfere withdecisions made by trial judges,
and one of the things which, inthe case I'm going to talk about
, which is this new case dealingwith fentanyl sentencing, the
Court of Appeal is at pains tosay in more than one place in
the judgment.
Nothing being said there shouldbe interpreted as taking away
from the all-importantindividualization of the
(01:33):
sentencing process.
Right, so we don't have inCanada, grids or, other than in
a few rare circumstancesrequired sentences.
Because human affairs are soinfinitely variable, trial
judges have a wide range ofdiscretion, and so when the
Crown or defense appeals asentence imposed by a judge
(01:55):
following a conviction or guiltyplea, the Court of Appeal can
only interfere with it if theyfind that the sentence imposed
is what's called demonstrablyunfit, which means that the
sentence must unreasonablydepart from principles of
proportionality, must bemanifestly excessive or
inadequate, and cannotreasonably be seen as
(02:16):
proportionate to the gravity ofthe offense and the personal
responsibility of the offender.
So now, this particular caseinvolved a man who was convicted
of possession of drugs for thepurpose of trafficking,
including 834 fentanyl pills and35.13 grams of MDMA.
(02:38):
The evidence was that thequantity of drugs he had all
totaled added up to about$250,000 worth.
It was originally aCrimestoppers tip that led to
surveillance and eventually asearch warrant for the person's
bedroom, and those things werefound, along with other
significant items, including ascale, kilogram, kilo wrappers,
(03:01):
a kilo press, a thousand smallbaggies, and on and on it went.
So it was clear that what washere was more than just a
personal use amount.
Right, and the judge thatsentenced the man took into
account a number ofconsiderations, including the
fact that he had no criminalrecord.
(03:22):
He was the sole caregiver of avulnerable teenage daughter who
didn't get along with her mother, so it would have major impacts
if he went to prison andvarious other mitigating factors
, and the judge of this caseimposed a two-year conditional
sentence, which was on housearrest, followed by three years
of probation, and that gotappealed by the Crown to the
(03:44):
Court of Appeal, who ultimatelyconcluded, taking into account a
consideration of the harmscaused by fentanyl, which there
was evidence of that presentedat the sentencing hearing,
including evidence from theBCD's coroner's service which,
as of 2024, concluded that overthe preceding eight years 14,582
(04:09):
people in British Columbia haddied from toxic drug use and
fentanyl continues to be theprimary driver of those deaths
right.
Now I should say there for amoment that language that
sometimes is cropped up of toxicdrug use seems to sort of imply
that somehow the fentanyl wasdoctored to make it unsafe.
(04:29):
But of course it is alwaysunsafe, right?
Taking fentanyl is deadly.
And so here the Court of Appealfound that the sentence imposed
, despite the mitigatingcircumstances and impact on the
man's daughter and so on, wasdemonstrably unfit and so
(04:52):
determined that they were ableto interfere with the sentence
and in so doing they laid outsort of guidelines, starting
point ranges for those for threedifferent categories of
offender.
The first category is describedas a street-level person who
was trafficking in it, you know,on the corner of Pandora Avenue
or something, and for thatcategory of person and the
(05:14):
starting point or the rangewould ordinarily be something
between 18 months and threeyears in prison.
Then they describe what's beenreferred to as a mid-level range
for people who are sort ofmid-level traffickers, and they
concluded that this man in thiscase was in that category of
(05:34):
being more than just a streettrafficker, sort of addict
person, and for that categorythey indicated that the ordinary
range would be somewherebetween four and seven years.
They did point out examples ofcases where that is departed
from, bearing in mind what Iindicated at the outset here,
that it's an individualizedprocess and nothing the Court of
(05:57):
Appeal is saying means that ajudge cannot depart from the
range range they pointed to, forexample, cases where there were
what are referred to as glad-dofactors, where you've got an
Indigenous person who's beingsentenced and the sentence that
might otherwise be appropriatemight be reduced, taking those
into account.
And so they gave examples ofthose as where there might be a
departure and then indicated andthis comes from a Supreme Court
(06:21):
of Canada case a few years agothat for high-level dealers at
the wholesale level it sort ofsuggests Costco, would be
something in the order of 8 to15 years in prison.
And so again, none of those arehard and fast rules.
There is discretion where thereare particularly salient sort
(06:42):
of human factors or GLADUfactors or other things that
might justify a departure fromthe range.
But it is some guidance fromthe Court of Appeal about what
might be expected and it will beinteresting to see again.
You know sentencing areintended to achieve a variety of
things, includingrehabilitation, some element of
retribution, denunciation,deterrence in some general way,
(07:06):
like both for the person, andhere, interestingly this man had
no previous record and it tooksome time for the case to be
concluded.
He hadn't committed any otheroffenses in several years.
But with these sort of things Iguess more so perhaps at the
sort of high wholesale level orsort of mid-level of the
activity, as opposed to theperson who's the street-level
(07:30):
addicted drug seller trying toget money to buy their next hit
of fentanyl Perhaps there issome chance that general
deterrence would have someimpact if somebody says oh my
goodness, I could go to prisonfor 15 years if I carry on with
my Costco-level distribution offentanyl.
Maybe there'll be someconsideration there.
I must say I could go to prisonfor 15 years if I carry on with
my Costco-level distribution offentanyl.
Maybe there'll be someconsideration there.
I must say I rather doubt thedrug-addicted street-level
(07:51):
trafficker who's selling drugsin order to feed their habit,
who's already of course riskingdeath by their use of the drugs,
is likely to be reading ordeterred by what the Court of
Appeal is saying.
But maybe there would be someimpact at the higher level if
there's a bit moresophistication and the people
might be listening to this or,you know, aware of what's
(08:15):
happening.
Unlike, I think is unlikely tobe the case.
With people who are, you know,street entrenched drug addicted
people who are selling somesmall amount to the next
addicted person next to them.
I'm hard pressed to know howthat person is going to look at
the Court of Appeal decision andsay, gee whiz, I think I better
give this up.
That seems very troubling.
(08:36):
So that's the latest in theCourt of Appeal and that's the
range of sentences that would beexpected, except in cases that
are out of the ordinary, forpossession for the purpose of
trafficking fentanyl in BritishColumbia.
Adam Stirling (08:48):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking continuesright after this.
Back to Legally Speaking onCFAX 1070.
As we continue our conversationwith Michael Mulligan from
Mulligan Defense Lawyers Michaelup next on the agenda, I'm
reading here challenge tofaculty association of Simon
Fraser University.
Resolutions on Gaza dismissed.
What happened?
Michael Mulligan (09:09):
Well, quite a bit actually.
So the particular case courtcase was brought under the
Societies Act and in particularSection 104 of the Societies Act
, which is a provision thatallows there to be a judicial
challenge to activity by asociety which is inconsistent
(09:32):
with its purposes.
So that's the legal basis forthis case getting into court,
and the activity in question wasit was a challenge brought by a
whole bunch of it looks likeprofessors from Simon Fraser
University who were challengingthe legality of resolutions that
were passed by the FacultyAssociation.
(09:54):
Now, the Faculty Association isa society.
Its primary function is to actas the equivalent of the union
for the faculty members at SimonFraser University, so it would
like to negotiate contracts andwhatnot and collect dues and so
forth.
But some members of the FacultyAssociation brought this long
(10:19):
resolution, which had, as manyof these things do, perhaps more
so in academia a whole seriesof whereas provisions dealing
with what's going on between thePalestinians and Israelis, and
so, for example, the long listof whereas provisions had things
like whereas Canadianuniversities, including SFU, are
(10:46):
complicit in the Israel projectof occupation and apartheid
through their partnership withIsraeli universities.
That just gives you a flavor ofwhat's the sort of stuff that
was included in this motion forthis resolution and eventually
this series of resolutions justkind of squeaked through.
Like the general resolutionpassed, 333 to 326.
So it sort of squeaked throughwith 41 people abstaining
(11:10):
unfortunately, maybe they shouldhave voted.
So it squeaked through, but itincluded a couple of provisions
that were specificallychallenged.
Both of the provisions areprovisions which have the
language of calling on SimonFraser University to do various
things, like, for example, theFaculty Association, as a result
of the resolution, was requiredto call on the Simon Fraser
(11:32):
University to take certainpositions with respect to Gaza
and call on the university todivest corporate engagement in
military arms production, and soon.
So anytime you see a resolutionwith the term call on, it
actually for me calls to mind ifyou remember the episode of the
Office where Michael Scottcomes into the office and then,
(11:53):
after he leaves the lunchroomand comes in and yells out that
he declares bankruptcy.
Yes, that's not quite how itworks.
So anytime you have aresolution that calls on
somebody to do something else isan indication that you're
pushing on a rather limp rope.
But nonetheless, I think it'sperhaps understandable why this
group of professors was nothappy with these call-on
(12:18):
resolutions with that series ofwhereas provisions.
Now, one of the things that thatinterestingly brings to mind is
the issue of compelledmembership in things like unions
and other organizations.
Right, we have in Canada aconstitutional right to freedom
of association, and freedom ofassociation generally includes a
freedom not to associate withother people.
(12:40):
Right, if you?
You know, the starting pointwould be if there's some
organization that you don't like, that they're passing
resolutions calling on people todo this, and that ordinarily
you wouldn't be forced to be amember of them.
But here these people couldn'tget out because the contract
with the Simon Fraser Universityrequires all faculty members to
(13:01):
be members of the FacultyAssociation.
So they can't just get out ofthis by saying I quit, I'm not
interested in calling on thesethings.
And there's a Supreme Court ofCanada case that dates all the
way back to 1991 that deals withthe issue of, in that case, the
way back to 1991.
It deals with the issue of, inthat case, a community college
(13:22):
teacher back in Ontario who wasrequired to pay union dues and
that person's union was doingvarious things, including making
donations to the NDP party, andthe person wasn't a supporter
of the NDP and so their positionwas I don't want to be forced
to pay union dues so the unioncan then pass those along to the
NDP.
That's not fair, and in thatparticular case there was a
(13:44):
provision that sometimes exists,called the RAND formula in
Canada.
The idea is that you could optout of being a member of the
union but you have to still paythe union dues.
So it's a bit of a symbolicopting out.
You still have to pay for it.
And that fact patternultimately got all the way to
the Supreme Court of Canada, whoat that point it's a split
decision, so it survivednarrowly on different legal
(14:05):
interpretations as to how thatshould be assessed, whether that
should be a Section 1limitation on the Freedom
Association or whether therequiring people to pay and
donate money to something theydon't want to support, whether
that interferes with it.
But it survived.
And so we have this state ofaffairs where you could be
(14:27):
forced to be in a union orprofessional association or
faculty association.
That's doing it, and you canimagine what might be going on.
Even if you think, great, Ilove the NDP, I want to give
them lots of money.
What happens when your unionstarts giving money to the you
know, anti-abortion group or thepro-abortion group, or how
about some religious group youdon't like or don't like, right?
(14:50):
And so I think there is a reallive issue about you know how
far should we go in forcingpeople to be members of
organizations that are doingthings like this?
Right, the argument for thatconcept that you might have to
pay union dues even if you don'twant to be part of the union
the justification for that wouldbe well, you're getting the
benefit of being in the unionand maybe a higher salary or
(15:11):
more vacation or shorter hoursor something.
So we shouldn't allow you tojust be a free rider by saying I
don't want to pay my dues, Ijust want the longer vacation
time or whatever the unionmanaged to get in terms of a
contract.
But the rub comes with thesesort of activities, right?
And in this case, the members ofthe faculty association that
(15:34):
didn't support this resolutionwhich was just almost half of
them, although not all of thembrought the challenge.
They were arguing that, whendoing this section 104 analysis,
their argument was well, thereshould be a narrow
interpretation put on what thiskind of association is permitted
to do and whether resolutionsare inconsistent with the
(15:57):
society's purpose.
Right, because their argumentwas hold on.
This is like a society dealingwith Simon Fraser University and
negotiating contracts.
What on earth is going on withthis society passing resolutions
, forming judgments about what'sgoing on with Gaza and the
Palestinians and so on, whereasthe Faculty Association was
(16:18):
arguing no, no, no, there shouldbe a really broad
interpretation of all of that,because the resolution did
include various whereas clausesclaiming things like a number of
universities were damaged ordestroyed by the fighting or
arguing things of this sort.
So they were saying thereshould be a really broad
interpretation.
(16:39):
And ultimately the judge lookedat all that, looked at the
reasons and looked at a numberof cases, including cases where
unions were doing various thingsright, and found that the
proper interpretation of thatSection 104 was to permit a
broad interpretation rather thana restrictive approach or
interpretation to it.
(17:01):
You know, pointing out that,for example, some union might
argue that well, we think thebest way to get bigger contracts
for our members is to makelarge donations to the NDP or
something right, and say, well,you know, court shouldn't get
into that, that's just going tobe the way it is, and so well,
at the end of the day, the courtcarefully pointed out that they
(17:23):
were not determining whetherthis resolution was advisable or
whether the contents or thepreamble or views expressed were
justified or right or any ofthose things.
Ultimately, the judge concludedthat a broad interpretation, a
liberal interpretation, as itwere, of that Section 104 is
appropriate.
And so, even though thiscollection of professors was
(17:47):
none too happy with what passed,they are stuck with it and they
can't get out Now.
You know, as I said, that lastSupreme Court of Canada case was
from 1991.
And this particular case wasn'ta charter challenge.
It was a challenge under theSocieties Act to determine
whether this was allowed.
But this particular case wasn'ta charter challenge.
It was a challenge under theSocieties Act to determine
whether this was allowed.
But this is the sort ofdecision with the kind of
(18:07):
controversial resolution thatmay lead to revisiting of things
.
Right, you have a differentfact pattern, you have a
different result.
Just like if somebody's unionstarted donating to the anti or
pro-abortion group, you mighthave a different analysis than
what happened in 1991 on thatsplit decision about NDP
donations by the union.
So that's the latest from theBC Supreme Court on the Gaza and
(18:31):
Simon Fraser FacultyAssociation.
Adam Stirling (18:32):
All right, we have two minutes remaining.
Michael Mulligan (18:36):
So final case on the agenda is a case that
comes out.
Of.
It deals with an issue ofconstructive dismissal, and the
fact pattern involved a man whohad been for a number of years
the comptroller of a airconditioning company, and the
air conditioning company wantedto no longer employ him.
(18:56):
And a person is entitled, andan employer can do that,
particularly in a non-unionizedenvironment.
But there's implied terms inemployment contracts that would
allow for either notice thatyou're being terminated without
cause or payment in lieu ofnotice.
And here the employer tried togo with the notice provision
(19:17):
rather than payment in lieu ofnotice.
And so they gave thecomptroller a notice that he was
going to be fired in eightmonths, but he was required to
keep working, that he would bepaid, he would get a letter of
reference, but he'd beterminated at that point.
Now, as you might imagine, thatdoesn't lead to the happiest of
work circumstances.
(19:37):
And shortly after the letterwas delivered and this is almost
unbelievable the person theyhired to replace him.
His name was Mr Bean, which ofcourse causes both in terms of
being countered for those of usthat might watch a bit of
popular culture.
So you're being replaced by MrBean, and then, over a period of
time, the company startstransferring responsibilities
(19:59):
from this guy to Mr Bean, and sohe's doing less and less of his
job.
And then the final straw isthat they transfer him to an
internal office, which alsohilariously, in addition to
being replaced I'm sure nothilariously for him being
replaced by Mr Bean the interioroffice also had no air
conditioning, which was a pointof gripe.
Given it was an airconditioning company, I guess it
was additional unhappiness.
(20:24):
So his argument was thisamounted to a constructive
dismissal and, as the judgepointed out, there are two kinds
of constructive dismissal youcan have a single thing that
caused you to be constructivelydismissed, or a collection of
things that cumulatively add upto that.
And here the argument was madeand accepted that what went on
was the transfer of duties to MrBean, combined with the
(20:44):
interior office, with no airconditioning, all eventually
added up to a constructivedismissal.
And so the net result is thatthe employer wasn't able to have
this fellow continuing to workthere, and they were required
ultimately to pay him for 15months of notice, taking into
account things including thefact that he was 63 years of age
(21:07):
and had worked there for eightyears when he was terminated, in
66 by the time he got to trial,and taking into account it's
particularly hard for a seniorperson at that age potentially
to get another job, and hehadn't succeeded despite trying.
So that's the latest on Mr Beanno air conditioning and
constructive dismissal.
Adam Stirling (21:25):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Thank you so much.
Thanks so much.
Always great to be here.
All right, we'll talk to youlater.
Quick break News is next.
It's time for our regular segment with barrister
and solicitor with MulliganDefence Lawyers.
It's Legally Speaking on CFAX1070 with Michael Mulligan,
Afternoon.
Michael, how are we doing?
Hey, good afternoon.
Michael Mulligan (00:11):
I'm doing great.
Always good to be here.
Adam Stirling (00:12):
Some interesting topics on the agenda today.
Off the top, it says the BCCourt of Appeal provides further
guidance with respect tosentences for fentanyl
trafficking.
What's the story?
Michael Mulligan (00:26):
Well, the first thing about this is it
gives some insight into how dojudges come up with sentences
and how do we try to make surethat they're similar, that kind
of thing.
And, of course, the justicesystem in Canada is a hierarchy
right.
Lower level judges have tolisten to what higher court
judges have to say, and so in BC, the BC Court of Appeal will,
in some circumstances, provideguidance for trial judges about
(00:50):
what sort of range of sentencemight be appropriate for a
particular type of offense.
And the idea, or one of theideas there, of course, is that
we want to have some consistencyso you don't wind up with
completely arbitrary outcomes indifferent cases for different
people with similar factpatterns.
Right Now, the next thing toknow is that the Court of Appeal
(01:12):
doesn't lightly interfere withdecisions made by trial judges,
and one of the things which, inthe case I'm going to talk about
, which is this new case dealingwith fentanyl sentencing, the
Court of Appeal is at pains tosay in more than one place in
the judgment.
Nothing being said there shouldbe interpreted as taking away
from the all-importantindividualization of the
(01:33):
sentencing process.
Right, so we don't have inCanada, grids or, other than in
a few rare circumstancesrequired sentences.
Because human affairs are soinfinitely variable, trial
judges have a wide range ofdiscretion, and so when the
Crown or defense appeals asentence imposed by a judge
(01:55):
following a conviction or guiltyplea, the Court of Appeal can
only interfere with it if theyfind that the sentence imposed
is what's called demonstrablyunfit, which means that the
sentence must unreasonablydepart from principles of
proportionality, must bemanifestly excessive or
inadequate, and cannotreasonably be seen as
(02:16):
proportionate to the gravity ofthe offense and the personal
responsibility of the offender.
So now, this particular caseinvolved a man who was convicted
of possession of drugs for thepurpose of trafficking,
including 834 fentanyl pills and35.13 grams of MDMA.
(02:38):
The evidence was that thequantity of drugs he had all
totaled added up to about$250,000 worth.
It was originally aCrimestoppers tip that led to
surveillance and eventually asearch warrant for the person's
bedroom, and those things werefound, along with other
significant items, including ascale, kilogram, kilo wrappers,
(03:01):
a kilo press, a thousand smallbaggies, and on and on it went.
So it was clear that what washere was more than just a
personal use amount.
Right, and the judge thatsentenced the man took into
account a number ofconsiderations, including the
fact that he had no criminalrecord.
(03:22):
He was the sole caregiver of avulnerable teenage daughter who
didn't get along with her mother, so it would have major impacts
if he went to prison andvarious other mitigating factors
, and the judge of this caseimposed a two-year conditional
sentence, which was on housearrest, followed by three years
of probation, and that gotappealed by the Crown to the
(03:44):
Court of Appeal, who ultimatelyconcluded, taking into account a
consideration of the harmscaused by fentanyl, which there
was evidence of that presentedat the sentencing hearing,
including evidence from theBCD's coroner's service which,
as of 2024, concluded that overthe preceding eight years 14,582
(04:09):
people in British Columbia haddied from toxic drug use and
fentanyl continues to be theprimary driver of those deaths
right.
Now I should say there for amoment that language that
sometimes is cropped up of toxicdrug use seems to sort of imply
that somehow the fentanyl wasdoctored to make it unsafe.
(04:29):
But of course it is alwaysunsafe, right?
Taking fentanyl is deadly.
And so here the Court of Appealfound that the sentence imposed
, despite the mitigatingcircumstances and impact on the
man's daughter and so on, wasdemonstrably unfit and so
(04:52):
determined that they were ableto interfere with the sentence
and in so doing they laid outsort of guidelines, starting
point ranges for those for threedifferent categories of
offender.
The first category is describedas a street-level person who
was trafficking in it, you know,on the corner of Pandora Avenue
or something, and for thatcategory of person and the
(05:14):
starting point or the rangewould ordinarily be something
between 18 months and threeyears in prison.
Then they describe what's beenreferred to as a mid-level range
for people who are sort ofmid-level traffickers, and they
concluded that this man in thiscase was in that category of
(05:34):
being more than just a streettrafficker, sort of addict
person, and for that categorythey indicated that the ordinary
range would be somewherebetween four and seven years.
They did point out examples ofcases where that is departed
from, bearing in mind what Iindicated at the outset here,
that it's an individualizedprocess and nothing the Court of
(05:57):
Appeal is saying means that ajudge cannot depart from the
range range they pointed to, forexample, cases where there were
what are referred to as glad-dofactors, where you've got an
Indigenous person who's beingsentenced and the sentence that
might otherwise be appropriatemight be reduced, taking those
into account.
And so they gave examples ofthose as where there might be a
departure and then indicated andthis comes from a Supreme Court
(06:21):
of Canada case a few years agothat for high-level dealers at
the wholesale level it sort ofsuggests Costco, would be
something in the order of 8 to15 years in prison.
And so again, none of those arehard and fast rules.
There is discretion where thereare particularly salient sort
(06:42):
of human factors or GLADUfactors or other things that
might justify a departure fromthe range.
But it is some guidance fromthe Court of Appeal about what
might be expected and it will beinteresting to see again.
You know sentencing areintended to achieve a variety of
things, includingrehabilitation, some element of
retribution, denunciation,deterrence in some general way,
(07:06):
like both for the person, andhere, interestingly this man had
no previous record and it tooksome time for the case to be
concluded.
He hadn't committed any otheroffenses in several years.
But with these sort of things Iguess more so perhaps at the
sort of high wholesale level orsort of mid-level of the
activity, as opposed to theperson who's the street-level
(07:30):
addicted drug seller trying toget money to buy their next hit
of fentanyl Perhaps there issome chance that general
deterrence would have someimpact if somebody says oh my
goodness, I could go to prisonfor 15 years if I carry on with
my Costco-level distribution offentanyl.
Maybe there'll be someconsideration there.
I must say I could go to prisonfor 15 years if I carry on with
my Costco-level distribution offentanyl.
Maybe there'll be someconsideration there.
I must say I rather doubt thedrug-addicted street-level
(07:51):
trafficker who's selling drugsin order to feed their habit,
who's already of course riskingdeath by their use of the drugs,
is likely to be reading ordeterred by what the Court of
Appeal is saying.
But maybe there would be someimpact at the higher level if
there's a bit moresophistication and the people
might be listening to this or,you know, aware of what's
(08:15):
happening.
Unlike, I think is unlikely tobe the case.
With people who are, you know,street entrenched drug addicted
people who are selling somesmall amount to the next
addicted person next to them.
I'm hard pressed to know howthat person is going to look at
the Court of Appeal decision andsay, gee whiz, I think I better
give this up.
That seems very troubling.
(08:36):
So that's the latest in theCourt of Appeal and that's the
range of sentences that would beexpected, except in cases that
are out of the ordinary, forpossession for the purpose of
trafficking fentanyl in BritishColumbia.
Adam Stirling (08:48):
Michael Mulligan with Mulligan Defense Lawyers.
Legally Speaking continuesright after this.
Back to Legally Speaking onCFAX 1070.
As we continue our conversationwith Michael Mulligan from
Mulligan Defense Lawyers Michaelup next on the agenda, I'm
reading here challenge tofaculty association of Simon
Fraser University.
Resolutions on Gaza dismissed.
What happened?
Michael Mulligan (09:09):
Well, quite a bit actually.
So the particular case courtcase was brought under the
Societies Act and in particularSection 104 of the Societies Act
, which is a provision thatallows there to be a judicial
challenge to activity by asociety which is inconsistent
(09:32):
with its purposes.
So that's the legal basis forthis case getting into court,
and the activity in question wasit was a challenge brought by a
whole bunch of it looks likeprofessors from Simon Fraser
University who were challengingthe legality of resolutions that
were passed by the FacultyAssociation.
(09:54):
Now, the Faculty Association isa society.
Its primary function is to actas the equivalent of the union
for the faculty members at SimonFraser University, so it would
like to negotiate contracts andwhatnot and collect dues and so
forth.
But some members of the FacultyAssociation brought this long
(10:19):
resolution, which had, as manyof these things do, perhaps more
so in academia a whole seriesof whereas provisions dealing
with what's going on between thePalestinians and Israelis, and
so, for example, the long listof whereas provisions had things
like whereas Canadianuniversities, including SFU, are
(10:46):
complicit in the Israel projectof occupation and apartheid
through their partnership withIsraeli universities.
That just gives you a flavor ofwhat's the sort of stuff that
was included in this motion forthis resolution and eventually
this series of resolutions justkind of squeaked through.
Like the general resolutionpassed, 333 to 326.
So it sort of squeaked throughwith 41 people abstaining
(11:10):
unfortunately, maybe they shouldhave voted.
So it squeaked through, but itincluded a couple of provisions
that were specificallychallenged.
Both of the provisions areprovisions which have the
language of calling on SimonFraser University to do various
things, like, for example, theFaculty Association, as a result
of the resolution, was requiredto call on the Simon Fraser
(11:32):
University to take certainpositions with respect to Gaza
and call on the university todivest corporate engagement in
military arms production, and soon.
So anytime you see a resolutionwith the term call on, it
actually for me calls to mind ifyou remember the episode of the
Office where Michael Scottcomes into the office and then,
(11:53):
after he leaves the lunchroomand comes in and yells out that
he declares bankruptcy.
Yes, that's not quite how itworks.
So anytime you have aresolution that calls on
somebody to do something else isan indication that you're
pushing on a rather limp rope.
But nonetheless, I think it'sperhaps understandable why this
group of professors was nothappy with these call-on
(12:18):
resolutions with that series ofwhereas provisions.
Now, one of the things that thatinterestingly brings to mind is
the issue of compelledmembership in things like unions
and other organizations.
Right, we have in Canada aconstitutional right to freedom
of association, and freedom ofassociation generally includes a
freedom not to associate withother people.
(12:40):
Right, if you?
You know, the starting pointwould be if there's some
organization that you don't like, that they're passing
resolutions calling on people todo this, and that ordinarily
you wouldn't be forced to be amember of them.
But here these people couldn'tget out because the contract
with the Simon Fraser Universityrequires all faculty members to
(13:01):
be members of the FacultyAssociation.
So they can't just get out ofthis by saying I quit, I'm not
interested in calling on thesethings.
And there's a Supreme Court ofCanada case that dates all the
way back to 1991 that deals withthe issue of, in that case, the
way back to 1991.
It deals with the issue of, inthat case, a community college
(13:22):
teacher back in Ontario who wasrequired to pay union dues and
that person's union was doingvarious things, including making
donations to the NDP party, andthe person wasn't a supporter
of the NDP and so their positionwas I don't want to be forced
to pay union dues so the unioncan then pass those along to the
NDP.
That's not fair, and in thatparticular case there was a
(13:44):
provision that sometimes exists,called the RAND formula in
Canada.
The idea is that you could optout of being a member of the
union but you have to still paythe union dues.
So it's a bit of a symbolicopting out.
You still have to pay for it.
And that fact patternultimately got all the way to
the Supreme Court of Canada, whoat that point it's a split
decision, so it survivednarrowly on different legal
(14:05):
interpretations as to how thatshould be assessed, whether that
should be a Section 1limitation on the Freedom
Association or whether therequiring people to pay and
donate money to something theydon't want to support, whether
that interferes with it.
But it survived.
And so we have this state ofaffairs where you could be
(14:27):
forced to be in a union orprofessional association or
faculty association.
That's doing it, and you canimagine what might be going on.
Even if you think, great, Ilove the NDP, I want to give
them lots of money.
What happens when your unionstarts giving money to the you
know, anti-abortion group or thepro-abortion group, or how
about some religious group youdon't like or don't like, right?
(14:50):
And so I think there is a reallive issue about you know how
far should we go in forcingpeople to be members of
organizations that are doingthings like this?
Right, the argument for thatconcept that you might have to
pay union dues even if you don'twant to be part of the union
the justification for that wouldbe well, you're getting the
benefit of being in the unionand maybe a higher salary or
(15:11):
more vacation or shorter hoursor something.
So we shouldn't allow you tojust be a free rider by saying I
don't want to pay my dues, Ijust want the longer vacation
time or whatever the unionmanaged to get in terms of a
contract.
But the rub comes with thesesort of activities, right?
And in this case, the members ofthe faculty association that
(15:34):
didn't support this resolutionwhich was just almost half of
them, although not all of thembrought the challenge.
They were arguing that, whendoing this section 104 analysis,
their argument was well, thereshould be a narrow
interpretation put on what thiskind of association is permitted
to do and whether resolutionsare inconsistent with the
(15:57):
society's purpose.
Right, because their argumentwas hold on.
This is like a society dealingwith Simon Fraser University and
negotiating contracts.
What on earth is going on withthis society passing resolutions
, forming judgments about what'sgoing on with Gaza and the
Palestinians and so on, whereasthe Faculty Association was
(16:18):
arguing no, no, no, there shouldbe a really broad
interpretation of all of that,because the resolution did
include various whereas clausesclaiming things like a number of
universities were damaged ordestroyed by the fighting or
arguing things of this sort.
So they were saying thereshould be a really broad
interpretation.
(16:39):
And ultimately the judge lookedat all that, looked at the
reasons and looked at a numberof cases, including cases where
unions were doing various thingsright, and found that the
proper interpretation of thatSection 104 was to permit a
broad interpretation rather thana restrictive approach or
interpretation to it.
(17:01):
You know, pointing out that,for example, some union might
argue that well, we think thebest way to get bigger contracts
for our members is to makelarge donations to the NDP or
something right, and say, well,you know, court shouldn't get
into that, that's just going tobe the way it is, and so well,
at the end of the day, the courtcarefully pointed out that they
(17:23):
were not determining whetherthis resolution was advisable or
whether the contents or thepreamble or views expressed were
justified or right or any ofthose things.
Ultimately, the judge concludedthat a broad interpretation, a
liberal interpretation, as itwere, of that Section 104 is
appropriate.
And so, even though thiscollection of professors was
(17:47):
none too happy with what passed,they are stuck with it and they
can't get out Now.
You know, as I said, that lastSupreme Court of Canada case was
from 1991.
And this particular case wasn'ta charter challenge.
It was a challenge under theSocieties Act to determine
whether this was allowed.
But this particular case wasn'ta charter challenge.
It was a challenge under theSocieties Act to determine
whether this was allowed.
But this is the sort ofdecision with the kind of
(18:07):
controversial resolution thatmay lead to revisiting of things
.
Right, you have a differentfact pattern, you have a
different result.
Just like if somebody's unionstarted donating to the anti or
pro-abortion group, you mighthave a different analysis than
what happened in 1991 on thatsplit decision about NDP
donations by the union.
So that's the latest from theBC Supreme Court on the Gaza and
(18:31):
Simon Fraser FacultyAssociation.
Adam Stirling (18:32):
All right, we have two minutes remaining.
Michael Mulligan (18:36):
So final case on the agenda is a case that
comes out.
Of.
It deals with an issue ofconstructive dismissal, and the
fact pattern involved a man whohad been for a number of years
the comptroller of a airconditioning company, and the
air conditioning company wantedto no longer employ him.
(18:56):
And a person is entitled, andan employer can do that,
particularly in a non-unionizedenvironment.
But there's implied terms inemployment contracts that would
allow for either notice thatyou're being terminated without
cause or payment in lieu ofnotice.
And here the employer tried togo with the notice provision
(19:17):
rather than payment in lieu ofnotice.
And so they gave thecomptroller a notice that he was
going to be fired in eightmonths, but he was required to
keep working, that he would bepaid, he would get a letter of
reference, but he'd beterminated at that point.
Now, as you might imagine, thatdoesn't lead to the happiest of
work circumstances.
(19:37):
And shortly after the letterwas delivered and this is almost
unbelievable the person theyhired to replace him.
His name was Mr Bean, which ofcourse causes both in terms of
being countered for those of usthat might watch a bit of
popular culture.
So you're being replaced by MrBean, and then, over a period of
time, the company startstransferring responsibilities
(19:59):
from this guy to Mr Bean, and sohe's doing less and less of his
job.
And then the final straw isthat they transfer him to an
internal office, which alsohilariously, in addition to
being replaced I'm sure nothilariously for him being
replaced by Mr Bean the interioroffice also had no air
conditioning, which was a pointof gripe.
Given it was an airconditioning company, I guess it
was additional unhappiness.
(20:24):
So his argument was thisamounted to a constructive
dismissal and, as the judgepointed out, there are two kinds
of constructive dismissal youcan have a single thing that
caused you to be constructivelydismissed, or a collection of
things that cumulatively add upto that.
And here the argument was madeand accepted that what went on
was the transfer of duties to MrBean, combined with the
(20:44):
interior office, with no airconditioning, all eventually
added up to a constructivedismissal.
And so the net result is thatthe employer wasn't able to have
this fellow continuing to workthere, and they were required
ultimately to pay him for 15months of notice, taking into
account things including thefact that he was 63 years of age
(21:07):
and had worked there for eightyears when he was terminated, in
66 by the time he got to trial,and taking into account it's
particularly hard for a seniorperson at that age potentially
to get another job, and hehadn't succeeded despite trying.
So that's the latest on Mr Beanno air conditioning and
constructive dismissal.
Adam Stirling (21:25):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Thank you so much.
Thanks so much.
Always great to be here.
All right, we'll talk to youlater.
Quick break News is next.
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