September 19, 2025 • 20 mins
What happens when the line between victim and perpetrator blurs in the eyes of the law? When a homeowner confronts a crossbow-wielding intruder or store employees stop a car theft, should they face criminal charges or civil lawsuits for defending themselves and their property?
Barrister Michael Mulligan unpacks the controversial legal landscape of self-defense in Canada, explaining how the 2012 amendments to the Criminal Code created a complex "reasonableness" requirement for those protecting themselves or others. This means that even when facing deadly threats in your own home, the law expects you to consider factors like the relative size, age, and gender of your attacker before responding. As Mulligan notes, "When you're fighting for your life or to save your children, you don't need to worry about weighing up how old this person is and what their gender is."
The discussion extends beyond criminal liability to civil lawsuits, highlighting a case where a self-described "career criminal" is suing grocery store employees who prevented him from stealing a car, claiming they damaged his self-esteem. This mirrors Alberta's experience, where a rancher faced legal action from a thief after firing a warning shot. The provincial response—legislation preventing "criminal trespassers" from suing unless force was "grossly disproportionate"—offers a potential model for other provinces.
The episode also examines a revealing case about Uber's wheelchair accessibility requirements in BC. Instead of mandating accessible vehicles, the government collects a 90-cent fee per non-accessible trip—money that disappears into general revenue while wheelchair users remain unable to use the service. When one wheelchair user won a $35,000 human rights award, the BC Supreme Court overturned it, revealing the tension between regulation and actual solutions.
These cases raise fundamental questions about our legal priorities: Should we better protect those defending themselves and their property? And when regulations like Uber's accessibility fee don't solve the actual problem, what's their real purpose? Listen for an eye-opening look at where our laws might be failing those they're meant to protect.
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, with Legally Speakingon CFAX 1070.
Good afternoon, michaelMulligan.
How are you?
Hey, good afternoon.
I'm doing great, always good tobe here.
Some interesting things on theagenda today.
I'm reading here criminalssuing for injuries and
homeowners being charged forassaulting intruders.
(00:22):
I know this was an item thatwas in the discourse recently
and myself and callers werediscussing it, but you, of
course, being Criminal DefenseCouncil, know exactly what is
and is not allowed in thesesituations and it's come up a
couple of times recently.
Michael Mulligan (00:35):
It has, and it's come up in a couple of
different contexts.
Right, many listeners will befamiliar with the controversial
recent case out of Ontario wherethere's a homeowner who has
been charged with assaulting aburglar who broke into his home
with a crossbow and there was aphysical altercation between the
(00:56):
homeowner and the crossbowwielding intruder and both the
intruder has been charged withthe break and enter, but they've
charged the homeowner withassaulting the intruder, and so
that has produced some realcontroversy in terms of whether
that should be so.
There's also been some recentinvolving a civil claim by a
(01:18):
person who is attempting tosteal a car, and I'll come to
that in a moment because the twothings have different sort of
elements to them.
The Ontario case, of course, isconcerned with the criminal
code provisions dealing withself-defense.
The other case we'll come to ina few minutes involving a
grocery store being charged withassaulting a thief, deals with
(01:43):
civil liability, which is aprovincial responsibility.
So what's happened federally isthat back in 2012, there were
amendments made to theself-defense provisions in the
criminal code Prior to 2012,.
In fairness, there weremultiple provisions and they
were relatively complicated.
They could become challenging,for example, for a judge trying
(02:07):
to explain them to a jury or howthey're to be applied, because
there were different provisions.
But at that time, when you weredealing with sort of the upper
end of seriousness in terms ofthe amount of self-defense
required where a person believedthey needed to defend
themselves or someone elseagainst death or serious bodily
(02:28):
harm, that would likely be thecrossbow-wielding intruder in
your bedroom, right?
Hard to imagine what's muchmore serious than that, and it'd
be easy to imagine how a personcould legitimately have a
concern that they're going todie or be seriously injured when
you've got a burglar in yourbedroom with a crossbow Prior to
(02:51):
2012,.
If that was so, there no longerneeded to be any assessment as
to sort of the degree of forceyou were using to save your life
or save your family's life.
Right, you didn't need to worryabout.
You know, should I use thekitchen knife here, or should I
just hit him softly, or might Ibe able to get him in the leg?
The idea was well, once you'reprotecting your life or protect
yourself from serious bodilyharm, there was no more
assessment of sort ofreasonableness or weighing up
(03:13):
with nicety the force used.
But what happened in 2012?
In that effort to try to makesimpler and combine the
different versions ofself-defense that existed is we
now have a version in thecriminal code that provides that
(03:34):
where somebody is acting inself-defense, that is to say,
using force to protectthemselves or someone else,
whether it's a death, threat totheir life or just being
assaulted or bodily harm thereis a requirement of an
assessment of reasonableness.
Now, on one level, you mightsay, well, surely we should all
strive to be reasonable.
Fair enough, right.
But when you put yourself inthe position of the homeowner,
(03:55):
with the burglar in your bedroom, and the fact that you now need
to engage in a consideration ofthe reasonableness of the force
used, with a series of factorsthat a judge or jury must
consider, labeled A through H,with things like the nature of
the force used Was it imminent?
The relative size, age, genderand physical capabilities of the
(04:18):
two parties, things of thissort, it can make it, even
though, at the end of the day,you might well have a jury that
says, yeah, you don't need tomeasure this with nicety, not
guilty.
It is a very significant matter,of course, to be the homeowner
charged and have to go throughtrial to sort out whether all of
these factors led up toreasonableness, and so that's
(04:41):
why there's some currentpolitical discussion about
whether we should maintain that,particularly in circumstances
where you've got like anintruder in somebody's heart in
a home or where you're trying tosave your life, should you
really be having to weigh up,ultimately to trial, the
reasonableness of it.
And you know, could you've gotthe guy in the leg, or you know
how old were they and how bigare you and various things.
(05:04):
And so that's from a criminalcode perspective, I think there
is, I think, real good scope fordebate about whether we should
have that sort of weighing upreasonableness, particularly in
cases of very serious threats ormaybe even for things like
you're in your home.
Where else would he supposed todo, imagine waking up in your
bedroom to that kind of intruder?
(05:24):
So that's the criminal side ofit, but there's also a civil
side of it, and there's a recentcase out of Manitoba that
raises that issue and the factpattern.
There was a person who describeshimself as a career criminal
and in some document hementioned having dealt with
something in the order of amillion dollars and stole a
property at various times, wentinto a small grocery store and
(05:49):
stole a jacket that had a keyfob in it, waited about half an
hour and then came back usingthe car key fob and tried to
steal a car from the parking lotusing the stolen fob from the
stolen jacket.
And the allegation is a bunchof the employees of the grocery
store ran out, dragged them outof the car and beat them up,
basically, or the police showedup.
(06:09):
None of the grocery storeemployees were charged with
anything.
The thief obviously was.
But the thief is now suing thegrocery store and all the
employees, alleging that theyused too much force in what they
did to him when they draggedhim out of the car that he was
attempting to steal, and he'salleging that that's caused
(06:32):
damage to his psychologicalstate and had a negative impact
on his self-esteem and how it'sinterfering with his ability to
continue to earn a living.
Presumably he doesn't mean bycontinuing to steal things, but
maybe that's what he wasreferring to, and so there's
been some consternation aboutshould that be permissible right
(06:53):
Now I should say the law doespermit people to use reasonable
force to prevent an offense orto detain somebody for the
police to show up.
You're not permitted to beatsomebody up to teach them a
lesson, right, that's notallowed.
Now, I should say one of theprotections we have both in
British Columbia and in Manitobanot all provinces have it, but
(07:14):
we have it here and it existsthere and it's important is we
have a right to a civil jury.
So if you're the grocery storeemployees, one of the things you
could do there if the samething happened in British
Columbia you could elect to havea civil jury with regular
members of the public who wouldthen come in.
In BC's case, it's aneight-person jury.
In Manitoba it's a six-personjury who would try the case, and
(07:38):
you might well imagine that thepublic values that that might
bring to bear might influencewhether the jury would be
persuaded to grant financialcompensation to the career
criminal thief who was draggedout of the car by the grocery
store employees.
Right, but that's not anisolated thing and other
(08:00):
provinces have dealt with it ina bit of a different way, like
in Alberta just a few years agoI think it was 2018, there was a
rancher who came out anddiscovered that there was
somebody rummaging through hisvehicles to steal things, and
the rancher had a shotgun and hefired a shot into the ground, I
guess as a warning, butunfortunately one of the pellets
(08:21):
deflected off the ground andhit the thief in the arm, and it
resulted in the thief suing therancher.
The Alberta response to thatwas to amend the legislation
there.
It was called the TrespassStatute Protecting Law Abiding
Property Owners Amendment Act in2019.
Statute Protecting Law AbidingProperty Owners Amendment Act in
(08:50):
2019.
And so, as a result of that,now in Alberta there is no cause
of action if you're a quotecriminal trespasser, unless the
property owner used force thatwas grossly disproportionate in
the circumstances.
So that's much more thanreasonable, and that person must
(09:15):
also have been convicted of aserious criminal offense
prosecuted by indictment.
And so the effect of that isthat you're not going to release
the case of trespassing.
When somebody is doingsomething to repel the criminal
trespasser or scare them off,they're not going to be able, at
the end of the day, to sue you,and so something like that
would be the responsibility ofeach province, right?
And so that's something thatperhaps should be considered in
(09:36):
the context of that Alberta caseand that current Manitoba case,
whether that sort of aprovision would be an
appropriate one.
So there are two aspects to itthe criminal code self-defense
provisions and whether we oughtto continue to have that
requirement for reasonableness,weighing up of the force being
used, with this long series offactors that must be considered
(10:00):
in circumstances wheresomebody's in fear of their life
, where you've got a you know,armed burglar in your home, or
whether the law should be inthose circumstances, maybe
something equivalent to thatcivil law in Alberta.
You know, maybe you could usesome language about grossly
disproportionate force, or maybewe should return to what we
have prior to 2012,.
(10:21):
Right, when you're fighting foryour life or to save your
children, you don't need toworry about weighing up the how
old is this person and what istheir gender, and how tall am I
and how tall the person comes inwith a gun or crossbow into
your bedroom.
Maybe we shouldn't require that,even if, at the end of the day,
a jury might not convict you.
(10:41):
Perhaps we shouldn't have acircumstance where you need to
be concerned with that.
That might also, of course,have a deterrent effect.
You know, I suspect that insome places, you might have more
careful thought about whetheryou want to be breaking into
somebody's house if there isn'tquite the sort of weighing up of
the force that might be used todefend you, although I suppose,
(11:04):
at the end of the day, as withmany of these things, I doubt
that there are a lot ofhomeowners, or indeed burglars,
that are carefully weighing upthe list of things in Section 34
of the Criminal Code whenthey're deciding what to do when
faced with the intruder intheir bedroom, and so perhaps we
should just give someforethought to whether we want
to have a circumstance wherethat weighing should occur after
(11:26):
the fact, because I doubt a lotof people are doing that when
faced with that sort of afrightening circumstance in
their home.
So that's what's going on withself-defense, both civil and
criminal, across the countryright now.
Adam Stirling (11:40):
All right, we'll take our first break.
Legally Speaking with MichaelMulligan from Mulligan Defense
Lawyers will continue rightafter this.
We are back on the air here atCFAX 1070 with Michael Mulligan
from Mulligan Defense Lawyers.
Legally Speaking on CFAX.
Michael, where were we?
We covered the incident ofinjuries and whatnot with
intruders.
I see a couple of other storieshere.
We've got nine minutes left.
Michael Mulligan (12:01):
Sure.
The next story on the agenda isa case involving Uber and a
human rights complaint inBritish Columbia, and the
background of that is this whenUber was licensed to operate in
British Columbia, one of thethings that was contemplated by
the provincial government waswhether there should be some
(12:25):
sort of a requirement that theyprovide wheelchair accessible
vehicles.
Now that is required in anothercontext.
It's required for taxicompanies at least some taxi
companies, right?
There's a requirement thatthere be a certain percentage of
taxis that are accessible usinga wheelchair.
You'll see a taxi, a van, witha ramp that comes down to the
(12:48):
back, for example, right Now forride-hailing companies,
including Uber, it wascontemplated whether to require
that.
Now it's a bit more complicatedin the ride-hailing world
because, of course, uber doesn'town any vehicles at all and
anyone can sign up or not signup to operate an Uber.
(13:08):
So it'd be a bit morechallenging to try to ensure
what particular kind of cars orwhat percentage of them are out
there, given that any of thepeople who are Uber drivers can
choose to turn on and off theirapp anytime they feel like it.
Right?
And what do you do if you'reUber, I guess, and all of the
people with the vans just say,yeah, not interested in doing
(13:28):
that right now.
Right, how do you make sureyou've got some percentage of
wheelchair accessible vehiclesout there In any case?
The province considered that and, in the regulations, instead of
requiring them to have apercentage of vehicles that were
wheelchair accessible, insteadthe provincial government
decided to require Uber to pay afee to the provincial
(13:50):
government of 90 cents for everypassenger trip in which there
is not a wheelchair accessiblevehicle used.
So every time you get in anUber unless a kid or so you're
paying it right.
You're paying 90 cents to thegovernment for that fee right
Now.
At right, you're paying 90cents to the government for that
fee right Now.
(14:10):
In that context, there's afellow over in Vancouver who
uses a wheelchair and he broughta human rights complaint, and
his human rights complaint waseither no way to call a
wheelchair accessible vehicleusing the Uber app and I don't
know whether that's still thecase, but at least that was the
case at the time and so hebrought a challenge and the
Human Rights Tribunal had tosort out well, what's the
meaning of this 90 cent charge?
(14:32):
And Uber's argument was well,hold on.
We had a whole bunch ofhearings about this and the
provincial government decided toimpose this 90 cent trip fee
that we pay for every singletrip for a vehicle that's not
wheelchair accessible, that thatwas an alternative to requiring
us to somehow ensure that therewere enough wheelchair
(14:53):
accessible vehicles being usedby Uber drivers at any given
time.
What's going on?
Why should we?
We can't be also subject to ahuman rights complaint?
What's happening here?
Well, the Human Rights Tribunaldisagreed and they said no, no,
no, the 90 cents wasn't somehowan alternative, it was an
effort to try to get them to usewheelchair accessible vehicles.
(15:13):
And so they awarded this fellow$35,000 and ordered them to
stop doing this.
Well, that just wound up by wayof a judicial review of that
decision, and the BC SupremeCourt judge that reviewed it
reversed what the Human RightsTribunal found and the judge
(15:35):
reviewing it found there justwas no evidentiary basis for the
conclusion that that 90 centfee was somehow intended to
encourage Uber to use allvehicles that were wheelchair
accessible.
It just is.
There's just no basis for thatconclusion.
Found that it was just not areasonable interpretation of
what happened.
(15:55):
But, on the flip side, thejudge said look, I don't.
The judge didn't go so far asto conclude that this was
intended, clearly, to be analternative choice.
Both things still applied, butthe interpretation given to it
by the Human Rights Tribunal wasnot an appropriate one or
correct, and so they've got togo back and assess it again in
(16:20):
light of that conclusion.
And the judge looked at thingslike the Hansard and the hansard
and the debates about it andthe hearings about it and all of
this now.
So there'll be a new, there'llbe a new hearing with the human
rights tribunal, but I guesshere's really the the rub of it
all.
Right, if you're the personwho's uh, uses a wheelchair, um,
paying 90 cents to thegovernment doesn't do anything
(16:43):
for you, right?
Yeah, um, I mean the.
The judge's conclusion was this$0.90 fee was to somehow allow
for more other accessibleoptions and to defray the
government's cost of regulatingride-hailing companies.
But what good does that, do youif you're in a wheelchair,
trying to get a vehicle?
And so the money just appearsto be going into government
(17:06):
revenue and not really achievingthat goal at all.
And so perhaps we'll see whathappens on the redo of the Human
Rights Tribunal hearing.
But you could imagine creativethings that could be done with
that money.
Maybe the government can usethat as an incentive to
encourage people or subsidizewheelchair accessible cars for
(17:29):
Uber drivers.
You can imagine doing thingswith that, even if it's not as
simple as just saying I orderyou to have 10% of the cars
wheelchair accessible, becausethat's very challenging.
You could imagine other thingsyou could reasonably do with
that money.
If you were the government.
That might help alleviate theunderlying issue here, rather
than just putting it in yourpocket and allowing these things
(17:50):
to sail on.
The other thing that'll happenif the Human Rights Tribunal, on
some different basis, comes tothe same conclusion the
alternative argument made byUber, and it wasn't addressed
because the judge said I don'tneed to, given my finding on
that Interpret First issue.
He said well, uber's otherposition was well, these things
are just completely inconsistent.
(18:11):
You've got a regulatory schemethat seems to expressly
contemplate not having vehiclesthat are wheelchair accessible
and having to pay a certain feefor that reason.
And then if the Human RightsCode makes that unlawful, well,
what are you supposed to do?
The two things just seem to beincompatible orders or
incompatible legal requirements,and so if the thing's just
(18:35):
allowed to sail on and go back,that may be where we wind up.
You know, another year or twofrom now, and you know again,
people that are usingwheelchairs are no better off
trying to get around, and sohopefully the government will
take notice of this and perhapsdo something with the 90 cents
multiplied by the total numberof Uber rides all over the
province it's going to be asubstantial amount of money and
(18:58):
come up with a way to use thatto solve the underlying problem
rather than simply leaving it asa human rights matter.
To come back once again, I alsomust say, as I read this thing,
it was kind of buried.
It buried this thing on page 25of the decision.
It's hard to understand quitehow the Human Rights Tribunal
(19:21):
would have come to theconclusion that this fellow who
brought the complaint would comeup to the figure of awarding
him $35,000.
It seems like a rather out ofthe cold blue sky when trying to
determine what your you knowproper compensation or loss
would have been for this stateof affairs, bearing in mind, of
(19:43):
course, there are otheralternatives.
Like you know, all the taxi,you know the taxi companies are
required to have those vehicles,and so you know, maybe some
consideration should be given asto whether that, whether this,
that is to say leaving this as ahuman rights matter, is the
right solution.
$35,000 to one person doesn'tseem to get the job done, nor
does having the government justcollect up a bunch of 90 cent
(20:05):
fees without doing anything seemto get the job done, and so
hopefully this gets a little bitof attention so that there can
be a proper solution and peoplecan get around.
And you know, the money justdoesn't go into general revenue.
So that's the latest from theBC Supreme Court, the Human
Rights Tribunal and Uber.
Adam Stirling (20:24):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
All right, quick break News isnext.
It's time for our regular segment, joined as
always by Barrister andSolicitor, with Mulligan Defence
Lawyers, with Legally Speakingon CFAX 1070.
Good afternoon, michaelMulligan.
How are you?
Hey, good afternoon.
I'm doing great, always good tobe here.
Some interesting things on theagenda today.
I'm reading here criminalssuing for injuries and
homeowners being charged forassaulting intruders.
(00:22):
I know this was an item thatwas in the discourse recently
and myself and callers werediscussing it, but you, of
course, being Criminal DefenseCouncil, know exactly what is
and is not allowed in thesesituations and it's come up a
couple of times recently.
Michael Mulligan (00:35):
It has, and it's come up in a couple of
different contexts.
Right, many listeners will befamiliar with the controversial
recent case out of Ontario wherethere's a homeowner who has
been charged with assaulting aburglar who broke into his home
with a crossbow and there was aphysical altercation between the
(00:56):
homeowner and the crossbowwielding intruder and both the
intruder has been charged withthe break and enter, but they've
charged the homeowner withassaulting the intruder, and so
that has produced some realcontroversy in terms of whether
that should be so.
There's also been some recentinvolving a civil claim by a
(01:18):
person who is attempting tosteal a car, and I'll come to
that in a moment because the twothings have different sort of
elements to them.
The Ontario case, of course, isconcerned with the criminal
code provisions dealing withself-defense.
The other case we'll come to ina few minutes involving a
grocery store being charged withassaulting a thief, deals with
(01:43):
civil liability, which is aprovincial responsibility.
So what's happened federally isthat back in 2012, there were
amendments made to theself-defense provisions in the
criminal code Prior to 2012,.
In fairness, there weremultiple provisions and they
were relatively complicated.
They could become challenging,for example, for a judge trying
(02:07):
to explain them to a jury or howthey're to be applied, because
there were different provisions.
But at that time, when you weredealing with sort of the upper
end of seriousness in terms ofthe amount of self-defense
required where a person believedthey needed to defend
themselves or someone elseagainst death or serious bodily
(02:28):
harm, that would likely be thecrossbow-wielding intruder in
your bedroom, right?
Hard to imagine what's muchmore serious than that, and it'd
be easy to imagine how a personcould legitimately have a
concern that they're going todie or be seriously injured when
you've got a burglar in yourbedroom with a crossbow Prior to
(02:51):
2012,.
If that was so, there no longerneeded to be any assessment as
to sort of the degree of forceyou were using to save your life
or save your family's life.
Right, you didn't need to worryabout.
You know, should I use thekitchen knife here, or should I
just hit him softly, or might Ibe able to get him in the leg?
The idea was well, once you'reprotecting your life or protect
yourself from serious bodilyharm, there was no more
assessment of sort ofreasonableness or weighing up
(03:13):
with nicety the force used.
But what happened in 2012?
In that effort to try to makesimpler and combine the
different versions ofself-defense that existed is we
now have a version in thecriminal code that provides that
(03:34):
where somebody is acting inself-defense, that is to say,
using force to protectthemselves or someone else,
whether it's a death, threat totheir life or just being
assaulted or bodily harm thereis a requirement of an
assessment of reasonableness.
Now, on one level, you mightsay, well, surely we should all
strive to be reasonable.
Fair enough, right.
But when you put yourself inthe position of the homeowner,
(03:55):
with the burglar in your bedroom, and the fact that you now need
to engage in a consideration ofthe reasonableness of the force
used, with a series of factorsthat a judge or jury must
consider, labeled A through H,with things like the nature of
the force used Was it imminent?
The relative size, age, genderand physical capabilities of the
(04:18):
two parties, things of thissort, it can make it, even
though, at the end of the day,you might well have a jury that
says, yeah, you don't need tomeasure this with nicety, not
guilty.
It is a very significant matter,of course, to be the homeowner
charged and have to go throughtrial to sort out whether all of
these factors led up toreasonableness, and so that's
(04:41):
why there's some currentpolitical discussion about
whether we should maintain that,particularly in circumstances
where you've got like anintruder in somebody's heart in
a home or where you're trying tosave your life, should you
really be having to weigh up,ultimately to trial, the
reasonableness of it.
And you know, could you've gotthe guy in the leg, or you know
how old were they and how bigare you and various things.
(05:04):
And so that's from a criminalcode perspective, I think there
is, I think, real good scope fordebate about whether we should
have that sort of weighing upreasonableness, particularly in
cases of very serious threats ormaybe even for things like
you're in your home.
Where else would he supposed todo, imagine waking up in your
bedroom to that kind of intruder?
(05:24):
So that's the criminal side ofit, but there's also a civil
side of it, and there's a recentcase out of Manitoba that
raises that issue and the factpattern.
There was a person who describeshimself as a career criminal
and in some document hementioned having dealt with
something in the order of amillion dollars and stole a
property at various times, wentinto a small grocery store and
(05:49):
stole a jacket that had a keyfob in it, waited about half an
hour and then came back usingthe car key fob and tried to
steal a car from the parking lotusing the stolen fob from the
stolen jacket.
And the allegation is a bunchof the employees of the grocery
store ran out, dragged them outof the car and beat them up,
basically, or the police showedup.
(06:09):
None of the grocery storeemployees were charged with
anything.
The thief obviously was.
But the thief is now suing thegrocery store and all the
employees, alleging that theyused too much force in what they
did to him when they draggedhim out of the car that he was
attempting to steal, and he'salleging that that's caused
(06:32):
damage to his psychologicalstate and had a negative impact
on his self-esteem and how it'sinterfering with his ability to
continue to earn a living.
Presumably he doesn't mean bycontinuing to steal things, but
maybe that's what he wasreferring to, and so there's
been some consternation aboutshould that be permissible right
(06:53):
Now I should say the law doespermit people to use reasonable
force to prevent an offense orto detain somebody for the
police to show up.
You're not permitted to beatsomebody up to teach them a
lesson, right, that's notallowed.
Now, I should say one of theprotections we have both in
British Columbia and in Manitobanot all provinces have it, but
(07:14):
we have it here and it existsthere and it's important is we
have a right to a civil jury.
So if you're the grocery storeemployees, one of the things you
could do there if the samething happened in British
Columbia you could elect to havea civil jury with regular
members of the public who wouldthen come in.
In BC's case, it's aneight-person jury.
In Manitoba it's a six-personjury who would try the case, and
(07:38):
you might well imagine that thepublic values that that might
bring to bear might influencewhether the jury would be
persuaded to grant financialcompensation to the career
criminal thief who was draggedout of the car by the grocery
store employees.
Right, but that's not anisolated thing and other
(08:00):
provinces have dealt with it ina bit of a different way, like
in Alberta just a few years agoI think it was 2018, there was a
rancher who came out anddiscovered that there was
somebody rummaging through hisvehicles to steal things, and
the rancher had a shotgun and hefired a shot into the ground, I
guess as a warning, butunfortunately one of the pellets
(08:21):
deflected off the ground andhit the thief in the arm, and it
resulted in the thief suing therancher.
The Alberta response to thatwas to amend the legislation
there.
It was called the TrespassStatute Protecting Law Abiding
Property Owners Amendment Act in2019.
Statute Protecting Law AbidingProperty Owners Amendment Act in
(08:50):
2019.
And so, as a result of that,now in Alberta there is no cause
of action if you're a quotecriminal trespasser, unless the
property owner used force thatwas grossly disproportionate in
the circumstances.
So that's much more thanreasonable, and that person must
(09:15):
also have been convicted of aserious criminal offense
prosecuted by indictment.
And so the effect of that isthat you're not going to release
the case of trespassing.
When somebody is doingsomething to repel the criminal
trespasser or scare them off,they're not going to be able, at
the end of the day, to sue you,and so something like that
would be the responsibility ofeach province, right?
And so that's something thatperhaps should be considered in
(09:36):
the context of that Alberta caseand that current Manitoba case,
whether that sort of aprovision would be an
appropriate one.
So there are two aspects to itthe criminal code self-defense
provisions and whether we oughtto continue to have that
requirement for reasonableness,weighing up of the force being
used, with this long series offactors that must be considered
(10:00):
in circumstances wheresomebody's in fear of their life
, where you've got a you know,armed burglar in your home, or
whether the law should be inthose circumstances, maybe
something equivalent to thatcivil law in Alberta.
You know, maybe you could usesome language about grossly
disproportionate force, or maybewe should return to what we
have prior to 2012,.
(10:21):
Right, when you're fighting foryour life or to save your
children, you don't need toworry about weighing up the how
old is this person and what istheir gender, and how tall am I
and how tall the person comes inwith a gun or crossbow into
your bedroom.
Maybe we shouldn't require that,even if, at the end of the day,
a jury might not convict you.
(10:41):
Perhaps we shouldn't have acircumstance where you need to
be concerned with that.
That might also, of course,have a deterrent effect.
You know, I suspect that insome places, you might have more
careful thought about whetheryou want to be breaking into
somebody's house if there isn'tquite the sort of weighing up of
the force that might be used todefend you, although I suppose,
(11:04):
at the end of the day, as withmany of these things, I doubt
that there are a lot ofhomeowners, or indeed burglars,
that are carefully weighing upthe list of things in Section 34
of the Criminal Code whenthey're deciding what to do when
faced with the intruder intheir bedroom, and so perhaps we
should just give someforethought to whether we want
to have a circumstance wherethat weighing should occur after
(11:26):
the fact, because I doubt a lotof people are doing that when
faced with that sort of afrightening circumstance in
their home.
So that's what's going on withself-defense, both civil and
criminal, across the countryright now.
Adam Stirling (11:40):
All right, we'll take our first break.
Legally Speaking with MichaelMulligan from Mulligan Defense
Lawyers will continue rightafter this.
We are back on the air here atCFAX 1070 with Michael Mulligan
from Mulligan Defense Lawyers.
Legally Speaking on CFAX.
Michael, where were we?
We covered the incident ofinjuries and whatnot with
intruders.
I see a couple of other storieshere.
We've got nine minutes left.
Michael Mulligan (12:01):
Sure.
The next story on the agenda isa case involving Uber and a
human rights complaint inBritish Columbia, and the
background of that is this whenUber was licensed to operate in
British Columbia, one of thethings that was contemplated by
the provincial government waswhether there should be some
(12:25):
sort of a requirement that theyprovide wheelchair accessible
vehicles.
Now that is required in anothercontext.
It's required for taxicompanies at least some taxi
companies, right?
There's a requirement thatthere be a certain percentage of
taxis that are accessible usinga wheelchair.
You'll see a taxi, a van, witha ramp that comes down to the
(12:48):
back, for example, right Now forride-hailing companies,
including Uber, it wascontemplated whether to require
that.
Now it's a bit more complicatedin the ride-hailing world
because, of course, uber doesn'town any vehicles at all and
anyone can sign up or not signup to operate an Uber.
(13:08):
So it'd be a bit morechallenging to try to ensure
what particular kind of cars orwhat percentage of them are out
there, given that any of thepeople who are Uber drivers can
choose to turn on and off theirapp anytime they feel like it.
Right?
And what do you do if you'reUber, I guess, and all of the
people with the vans just say,yeah, not interested in doing
(13:28):
that right now.
Right, how do you make sureyou've got some percentage of
wheelchair accessible vehiclesout there In any case?
The province considered that and, in the regulations, instead of
requiring them to have apercentage of vehicles that were
wheelchair accessible, insteadthe provincial government
decided to require Uber to pay afee to the provincial
(13:50):
government of 90 cents for everypassenger trip in which there
is not a wheelchair accessiblevehicle used.
So every time you get in anUber unless a kid or so you're
paying it right.
You're paying 90 cents to thegovernment for that fee right
Now.
At right, you're paying 90cents to the government for that
fee right Now.
(14:10):
In that context, there's afellow over in Vancouver who
uses a wheelchair and he broughta human rights complaint, and
his human rights complaint waseither no way to call a
wheelchair accessible vehicleusing the Uber app and I don't
know whether that's still thecase, but at least that was the
case at the time and so hebrought a challenge and the
Human Rights Tribunal had tosort out well, what's the
meaning of this 90 cent charge?
(14:32):
And Uber's argument was well,hold on.
We had a whole bunch ofhearings about this and the
provincial government decided toimpose this 90 cent trip fee
that we pay for every singletrip for a vehicle that's not
wheelchair accessible, that thatwas an alternative to requiring
us to somehow ensure that therewere enough wheelchair
(14:53):
accessible vehicles being usedby Uber drivers at any given
time.
What's going on?
Why should we?
We can't be also subject to ahuman rights complaint?
What's happening here?
Well, the Human Rights Tribunaldisagreed and they said no, no,
no, the 90 cents wasn't somehowan alternative, it was an
effort to try to get them to usewheelchair accessible vehicles.
(15:13):
And so they awarded this fellow$35,000 and ordered them to
stop doing this.
Well, that just wound up by wayof a judicial review of that
decision, and the BC SupremeCourt judge that reviewed it
reversed what the Human RightsTribunal found and the judge
(15:35):
reviewing it found there justwas no evidentiary basis for the
conclusion that that 90 centfee was somehow intended to
encourage Uber to use allvehicles that were wheelchair
accessible.
It just is.
There's just no basis for thatconclusion.
Found that it was just not areasonable interpretation of
what happened.
(15:55):
But, on the flip side, thejudge said look, I don't.
The judge didn't go so far asto conclude that this was
intended, clearly, to be analternative choice.
Both things still applied, butthe interpretation given to it
by the Human Rights Tribunal wasnot an appropriate one or
correct, and so they've got togo back and assess it again in
(16:20):
light of that conclusion.
And the judge looked at thingslike the Hansard and the hansard
and the debates about it andthe hearings about it and all of
this now.
So there'll be a new, there'llbe a new hearing with the human
rights tribunal, but I guesshere's really the the rub of it
all.
Right, if you're the personwho's uh, uses a wheelchair, um,
paying 90 cents to thegovernment doesn't do anything
(16:43):
for you, right?
Yeah, um, I mean the.
The judge's conclusion was this$0.90 fee was to somehow allow
for more other accessibleoptions and to defray the
government's cost of regulatingride-hailing companies.
But what good does that, do youif you're in a wheelchair,
trying to get a vehicle?
And so the money just appearsto be going into government
(17:06):
revenue and not really achievingthat goal at all.
And so perhaps we'll see whathappens on the redo of the Human
Rights Tribunal hearing.
But you could imagine creativethings that could be done with
that money.
Maybe the government can usethat as an incentive to
encourage people or subsidizewheelchair accessible cars for
(17:29):
Uber drivers.
You can imagine doing thingswith that, even if it's not as
simple as just saying I orderyou to have 10% of the cars
wheelchair accessible, becausethat's very challenging.
You could imagine other thingsyou could reasonably do with
that money.
If you were the government.
That might help alleviate theunderlying issue here, rather
than just putting it in yourpocket and allowing these things
(17:50):
to sail on.
The other thing that'll happenif the Human Rights Tribunal, on
some different basis, comes tothe same conclusion the
alternative argument made byUber, and it wasn't addressed
because the judge said I don'tneed to, given my finding on
that Interpret First issue.
He said well, uber's otherposition was well, these things
are just completely inconsistent.
(18:11):
You've got a regulatory schemethat seems to expressly
contemplate not having vehiclesthat are wheelchair accessible
and having to pay a certain feefor that reason.
And then if the Human RightsCode makes that unlawful, well,
what are you supposed to do?
The two things just seem to beincompatible orders or
incompatible legal requirements,and so if the thing's just
(18:35):
allowed to sail on and go back,that may be where we wind up.
You know, another year or twofrom now, and you know again,
people that are usingwheelchairs are no better off
trying to get around, and sohopefully the government will
take notice of this and perhapsdo something with the 90 cents
multiplied by the total numberof Uber rides all over the
province it's going to be asubstantial amount of money and
(18:58):
come up with a way to use thatto solve the underlying problem
rather than simply leaving it asa human rights matter.
To come back once again, I alsomust say, as I read this thing,
it was kind of buried.
It buried this thing on page 25of the decision.
It's hard to understand quitehow the Human Rights Tribunal
(19:21):
would have come to theconclusion that this fellow who
brought the complaint would comeup to the figure of awarding
him $35,000.
It seems like a rather out ofthe cold blue sky when trying to
determine what your you knowproper compensation or loss
would have been for this stateof affairs, bearing in mind, of
(19:43):
course, there are otheralternatives.
Like you know, all the taxi,you know the taxi companies are
required to have those vehicles,and so you know, maybe some
consideration should be given asto whether that, whether this,
that is to say leaving this as ahuman rights matter, is the
right solution.
$35,000 to one person doesn'tseem to get the job done, nor
does having the government justcollect up a bunch of 90 cent
(20:05):
fees without doing anything seemto get the job done, and so
hopefully this gets a little bitof attention so that there can
be a proper solution and peoplecan get around.
And you know, the money justdoesn't go into general revenue.
So that's the latest from theBC Supreme Court, the Human
Rights Tribunal and Uber.
Adam Stirling (20:24):
Michael Mulligan, with Mulligan Defense Lawyers,
legally speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
All right, quick break News isnext.
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