December 19, 2024 • 22 mins
Our conversation begins with a deep dive into the charge approval process for sexual assault, where we illuminate the nuances between the standards required for police arrests and those for Crown charge approvals. We tackle the challenge of relying solely on the versions of events provided by complaints due to the lack of independent witnesses or forensic evidence. Through a discussion on trauma-informed interviewing, we ponder its potential impact on case outcomes and highlight the importance of maintaining fairness by not labelling complainants as victims before trial proceedings.
In the second half of the show, we tackle the sobering realities of hit-and-run cases. We explore an ICBC claim following a hit-and-run accident in Vancouver, emphasizing the importance of promptly and actively pursuing insurance coverage by identifying at-fault drivers rather than relying entirely on police investigations. To enrich this discussion, we welcome Michael Mulligan of Mulligan Defence Lawyers for his regular Legally Speaking segment, where he offers invaluable legal insights and expertise. Join us as we navigate these legal intricacies, offering you a rich understanding of the processes and implications at stake.
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 Legally Speaking, joined by
barrister and solicitor, withMulligan Defence Lawyers,
Michael Mulligan.
Morning, Michael.
How are we doing?
Hey, good morning.
I'm doing great.
Always good to be here.
Lots of interesting stories onthe agenda this week.
Where shall we begin?
Michael Mulligan (00:13):
Well, I thought, before getting into the
cases that we've got on theofficial agenda for today, it
might be useful to provide someinsight to listeners about what
the charge approval processactually looks like in sexual
assault cases.
Perfect, thank you, and Ishould say you've correctly
expressed sort of what thecharge approval standard is for
(00:35):
Crown right.
They need to be satisfiedthere's a substantial likelihood
of conviction and it's in thepublic interest to proceed.
The legal threshold for thepolice to arrest somebody is
lower than that.
They just need to havereasonable grounds to believe
that somebody's committed anoffense and they can arrest them
.
Now here's how that plays outin 2024 in the context of a
(00:58):
sexual assault allegation.
One of the realities with sexualassault allegations is that
they ordinarily are allegationsof things that would virtually,
by their nature, have occurredin private and well and so,
unlike almost any other eventswhere you would expect there to
(01:18):
be things like some otherwitness who might have observed
something or something occurringin public right, some other
witness who might have observedsomething or something occurring
in public right, there is often, in sexual assault cases,
absolutely nothing other thanthe version of events provided
by the complainant.
Now, I should say, sometimesthere can be forensic evidence
(01:39):
like, for example, dna evidencethat might establish, for
example, there was sexualactivity involving two people,
but almost never will there beforensic evidence or independent
witnesses that would establishthings like whether sexual
activity was consensual.
And so in many sexual assaultcases, the investigation amounts
(02:01):
to almost nothing other than acomplainant saying this happened
to me.
And, moreover, the approachtaken often in modern times the
police engage in what they referto as a trauma-informed
interview of the complainant,which means asking them what
happened, frequently not askingprobing questions, saying to the
(02:25):
person you're very brave forhaving come forward, I believe
you, and then making sure youdon't interview them again.
So there wouldn't be anyinconsistent statement that in
many sexual assault cases in2024, is the sum total of the
case investigation, and so it is.
While I appreciate this may notbe a politic thing to be saying,
(02:45):
it is one of the offenses thatsomebody who is substantively
innocent is most likely to becharged with, and that is
because there's often nothingbut the version of events from
the complainant to support theallegation.
And that's not a comment on theparticular case of these police
officers and that person whotragically took his own life.
(03:07):
There could be more right.
Sometimes persons confess tosomething right, or sometimes
you know there are other thingswhich would give you a greater
degree of confidence.
But in 2024, the reality is whensomebody goes to the police and
says I was sexually assaulted,I did not consent to the sexual
activity in the bedroom lastnight, the reality is that the
(03:30):
police are going to ordinarilywind up simply arresting the
accused and Crown will wind upcharging them and the only
evidence is the version ofevents provided by the
complainant.
And unfortunately and I don'tthink this is how things should
proceed but the very first timethat anyone is asking sort of
probing, difficult questions ofthe complainant about the
(03:51):
version of events or what theysay happened is at trial, and so
it is a category of offensewhere there simply is a high
percentage of people who arecharged, who just are innocent,
and it also has the effect thatthere is a because of people who
are charged who just areinnocent, and it also has the
effect that there is a becauseof how those investigations
occur.
There is a of cases thatproceed to trial.
(04:14):
It's also a category of casefor which there is a high rate
of acquittals, and that isbecause there is no other
evidence to confirm it.
Right, the entire case ispremised on the version of
events the complainant provided,and because the police engage
in this trauma-informedinterview approach where they
don't challenge the person ontheir version of events or do
(04:36):
anything else, it's a matter of,yes, you see this happen, we
believe you, you're very bravefor having come forward, and
they're accused as arrested andcharges are approved on nothing
but that.
Now, there may be more in thiscase.
This is no comment on thatparticular central Saanich case,
but the listener should beaware that it is routine that
(04:58):
there be criminal chargesapproved with nothing but a
version of events from acomplainant, approved with
nothing but a version of eventsfrom a complainant.
And I suppose the flip side ofthat is, if that wasn't so, you
would not want to live in aworld where there could be
sexual assaults committed withimpunity in private, right,
because often there is going tobe nothing else and nothing else
(05:19):
would be expected.
Right, the entire case ispremised on somebody saying I
did not consent to this sexualactivity.
That's it and nothing else.
You would not expect there tobe another witness standing
there or video recording and nodna will tell us whether there
was consent or not, um, and sowe really do need to, where
there are these kind ofallegations made, not start from
(05:42):
the proposition that the personhaving made the complaint is
indeed the victim.
They may be right, but you know,the fact that a charge was
approved or somebody has made acomplaint does not necessarily
translate to that conclusion.
So, as the person who respondedto your earlier comments, the
appropriate way to respond tothe person would be the alleged
victim or the complainant,because at this point there
(06:05):
hasn't been anything more donethat would indicate any greater
degree of certainty about whattranspired.
So it's a tragic case and, as Isaid, I don't have any insight
into the evidence in thisparticular case.
Perhaps there is something morethan what I've indicated, but
if you have a historicallegation of sexual assault,
(06:29):
often the only evidence will bethe version of events provided
by the complainant.
I'm thinking.
Adam Stirling (06:35):
The other charge was breach of trust, and I know
Deputy Chief Wilson said thatthere was a covert operation,
that evidence was collected andI believe breach of trust
includes either a willful ordeliberate element in terms of
mens rea, doesn't it?
Michael Mulligan (06:47):
Yes, but we have to bear in mind, sir.
Well, what is that allegation?
It's been announced that thisis an allegation of sexual
assault, while I think on duty,and so what exactly that amounts
to is unclear, it's not welldefined here, and maybe there's
something else that wouldsupport that.
But again, it is not at alluncommon that there be sexual
(07:13):
assault allegations, somebodyarrested and Crown approving the
charges, with nothing insupport of them other than the
version of events provided bythe complainant.
And the complainant might bereliable.
And again, you wouldn't want tohave a state of affairs where,
unless there was some otherperson observing it, you could
not have a charge approved,right, that would not be an
acceptable state of affairs.
(07:34):
Right, that would allow actionswith impunity in private, and
that's not the state of affairsin Canada.
But it is just important toremember that, indeed, people
are arrested and charged withnothing more than that.
And the very first time thatanyone asks probing questions,
right, challenging what theperson said to say is at trial.
(07:55):
That part I think we couldimprove upon, right, I mean, I
appreciate why there's amotivation to want to be
supportive of people who areindeed victims of crime, right,
but when the approach taken isanything that a person says when
they allege that they are avictim of sexual assault is
treated as must be truthful andthe immediate response and that
(08:18):
is how at least some policeofficers investigate these
things treat the personimmediately as must be a truth
teller and a victim, becauseyou've alleged something's
happened and that might be so,and it may be so in many cases,
but it is certainly not so inevery case.
And so if you take thatapproach that anyone who makes
(08:38):
an allegation must be tellingthe truth, by virtue of the fact
that they made that allegation,and you have a policy in police
, as some police detachments do,that they are to engage in this
trauma-informed process, whichmeans not challenging the person
, trying not to interview themagain to avoid inconsistent
versions of events from them,and simply assuming whatever
(09:00):
you're being told must be true.
One of the results of that isthat you will have a higher
percentage of people who areinnocent charged with offenses,
and simply the fact of beingcharged with this kind of an
offense, arrested or chargedwith this kind of an offense,
has devastating implications forpeople, right, it's the end of
(09:20):
their reputation.
They're often fired from theiremployment, and we saw in this
case from Central Santa, themost tragic response to that
that having occurred withoutpermission, no matter ever
proceeding to trial or anythingelse.
But you can imagine that's theend of that person's reputation
and career, right?
Simply the fact of the you knowarrest and charge.
(09:41):
And so you know that'simportant as well, and I guess
really that's the point.
Not every person who makes anallegation is indeed a victim.
They might be, but oftenthere's nothing to support it
other than what they've allegedhas happened.
The other thing about that kindof charge, that kind of
(10:01):
activity, is it's an unusualfrom a criminal law perspective,
because most criminal offensesare things which no one would
ever consent to, right, I wasshot, or somebody stole my gold
bar, or you know somebody youknow defeated my wall.
Who's agreeing to that?
No one.
But by nature of sort of sexualassault allegations.
(10:25):
Usually that kind of activityis consensual, right, yes, and
so you know it can be even morechallenging where the particular
allegation being made is anallegation of something which
most of the time people arehappy to be doing together,
right, and so that makes it evenmore challenging, because it's
(10:47):
a very different sort ofallegation than when somebody's
calling and saying, hey,somebody stole my car or you
know, somebody stabbed me in thearm.
Well, who's agreeing to that?
No one.
But in many cases the activitywould ordinarily be activity
that both parties are happy andconsensually engaging in.
And it can be very difficult,particularly in historic cases,
(11:10):
with no other witnesses and noother evidence to try to sort
out, you know, whether thisparticular activity was
consensual or not, and the bestmethod we have for that is a
trial.
But I suppose I would say therewould be some changes to process
which I think would improvethings, which would include a
more skeptical and probingapproach taken by police
(11:33):
investigating these cases,bearing in mind the devastating
impact of this kind of arrest orcharge.
And you know there arepolitical reasons, you know
small political reasons, why youknow the police don't want to
be seen, as you know, skepticalor challenging of people that
are making these kinds of claims.
And we saw a few years ago aseries of articles that were run
(11:57):
in the Globe and Mail wherepolice were criticized for
concluding that sexual assaultallegations in some cases were
unfounded and they werecriticized as being insensitive
and that these things should betaken as by default true any
time an allegation is being made, and one of the responses we've
(12:19):
seen from police detachments tothat kind of criticism is that
sort of trauma informed yes,thank you, you're so brave, we
don't have any other questions,and you'll arrest the person and
then Crown's presented with areport that says you know,
so-and-so alleges this happened,ended with a report that says
you know, so-and-so alleges thishappened.
(12:39):
Okay, again, you're the boldcrown that wants to say well,
I've somehow determined on thebasis of this statement that
you're a liar, right, how arethey supposed to do that?
And so the charge gets approvedand off it goes to trial.
And I suppose the other elementof it is that some of those
parties involved police and theCrown and everyone say, well,
we'll leave that to the judgethat isn't going to be fired or
(13:01):
humiliated in the newspaper forbeing insensitive, concluding
that something was unfounded,and we'll just let that thing
sort out at trial.
But you know, this tragic localcase shows the implications of
just being arrested and chargedare devastating and whatever
happened here, the outcome is atragedy for the person who took
(13:22):
their own life and their familyand everyone else.
Whatever happened, you know,death wasn't the appropriate
response and so, anyways, Ithought all those things might
just be useful when people aretrying to assess.
You know, what can we make ofthe fact that there was an
arrest or a charge?
Does that necessarily meanthere was some kind of
compelling evidence to supportthe allegation?
(13:43):
And the answer, broadly, is no,it doesn't.
There might have been somethinghere, but that is not a
requirement for there to be anarrest or a charge approved.
So that's the insight on thatterrible case from Central
Sandwich.
Thank you, michael.
Adam Stirling (13:58):
That's helpful.
I really do appreciate it.
We'll take a quick break,Legally speaking, we'll continue
right after this.
All right back on the air hereat CFAX 1070, texture is 71010,
saying thank you, Michael andAdam.
We need this information tohelp us and I want to pass on my
thanks as well.
Michael mulligan and folks.
Regular listeners to thesegment know that michael
mulligan works at mulligandefense lawyers.
He represents the interests inthe criminal justice system of
(14:21):
people who have been accused ofcrimes, and so he knows exactly
what it does take and does nottake for people to find
themselves swept up in such asystem and what can happen.
So that's very beneficialinsight, michael.
We thank you for it.
We've got a couple of otherstories on the agenda today.
What shall we do?
We've got eight and a halfminutes.
Michael Mulligan (14:40):
Sure.
The next case on the agendainvolves an ICBC claim with
respect to a hit-and-runaccident, and there's some
really important lessons in thecase that I think many people
will be unaware of, and if youdon't know about them, you could
wind up not having insurancecoverage.
And so this particular case wasa decision involving a claim
(15:06):
that arose out of a hit and runaccident over in Vancouver.
It occurred in 2019.
And the fact pattern was astolen GMC pickup truck went
through a stop sign andbroadsided a Mercedes with three
people in it, t-boning it,causing it to spin around and
wind up off the road.
So a serious accident.
(15:26):
The person driving the truckgot out, described as likely
wearing a black or white hoodiethat's quite a possible range of
colors and fled the scene andwas never identified.
And so, then, what came fromthis was a claim for the
injuries sustained by the peoplethat were in the car the three
(15:46):
of them sustained by the peoplethat were in the car the three
of them.
Now, this process has changed alittle bit since 2019.
Because of no fault, with nofault, now you're basically
responsible.
Now that no one's responsible,you have to purchase your own
(16:09):
hit-and-run coverage forinjuries and some losses in a
hit-and-run accident.
So it's either specifichit-and-run coverage or
collision coverage, and if youdon't buy that you don't get
coverage other than medical andother expenses like that.
But hit-and-runs can occur inall kinds of circumstances.
You can have, like this, anaccident where a person runs
(16:29):
away.
You could have somebody whobacks into your car and doesn't
leave a note.
You can have somebody whosmashes into property and takes
off.
You can have somebody who stopsbut doesn't identify themselves
or gives false identification,things like that.
And so they can come in a wholevariety of ways.
But in this particular case,the way it works at least back
(16:51):
when people were responsible fortheir own actions.
The idea is, pursuant to thissection of the Insurance Motor
Vehicle Act, that if there's ahit and run accident of that
kind you would be permitted insome circumstances to sue ICBC
to try to get coverage for yourinjuries.
(17:14):
Now the landmine here is that aperson who is making that kind
of claim must make allreasonable efforts to ascertain
the identity of the other driverin order to be able to sue ICBC
, because ordinarily sort of acommon law right you can sue
(17:36):
somebody who causes some loss toyou If somebody backs into your
car or smashes your fence downor does something, you could sue
the person, but we have thisprovision that allows you to sue
ICBC, where you've made allreasonable efforts to ascertain
the identity of the person whotook off.
Now, in this particular case,the police showed up this is
(17:58):
obviously a stolen car and theperson fled and caused an
accident.
The police conducted aninvestigation for a little over
a week and they ultimatelyconcluded there's no other
investigation to be done.
We can't find this person Now.
The people who were injured inthe car did eventually get a
(18:19):
lawyer.
It looks like the lawyer knewwhat to do.
They hired at that point aprivate investigator to post
signs around the neighborhood,put it in the newspaper and so
on, but that produced nothing,probably because that was done a
year after the fact, and sothis case then wound up at trial
with can you proceed with thisclaim?
Have you made all reasonableefforts to ascertain the
(18:40):
identity of the person who tookoff?
And ultimately, the legalanswer to that was no, and so
the number of things in the casepeople need to know about if
you have this kind of thinghappen.
One is that there areexpectations that you make
(19:06):
prompt efforts, like the effortsby the investigator that was
hired by the lawyer a year later, were not sufficient because
they weren't done promptly.
And there's an expectation thatyou do things like put up signs
, looking for witnesses, run anad in the newspaper or otherwise
trying to drum up potentialwitnesses to the accident.
And it also makes clear thatyou can't just offload your
responsibility to the police.
It's your responsibility tomake all of these reasonable
efforts and barring a very highthreshold, which would be, oh,
(19:29):
this would just be impossible,fanciful things, which the judge
concluded here.
These weren't.
He said well, maybe you put upsigns, maybe some family member
would identify the person whocame home after stealing a car,
or maybe somebody in theneighborhood would have
recognized something, and so theresult of not doing that is no
claim is no claim.
(19:55):
And the judge in this case,which just came out, pointed out
what multiple other judges havepointed out, which is the
potential unfairness theseprovisions result in.
And the judge pointed out thatsome of those could be addressed
by requiring ICBC to tellsomeone hey, you've got an
obligation to start makinginquiries.
They don't have that obligationand they didn't hear.
(20:15):
And the net result is the threepeople injured in the car were
unsuccessful in their claim.
And so that's really what Ithink listeners need to know
about, which is, if you wind upin a circumstance where there's
a hit and run and appreciating,there are all kinds of different
permutations to that, right,you know, was the car tended
unattended?
Is it property damage?
Is it personal injury?
(20:36):
When did that happen Right?
Which would all have slightlydifferent legal implications.
The starting point is that youshould be making all reasonable
efforts to try to figure out whothat person was, and you know,
for example, that might include,you know, if you have some
opportunity to like record ortake a picture of the person's
license plate number, did you dothat Right?
(20:58):
If you were there, have youcanvassed?
Have you put up signs?
What have you done?
And it's not enough to just say, well, I was hurt or I was
taken to the hospital, or evenenough to say the police were
involved.
You've got to do it, and so ifyou are involved in any kind of
a hit-and-run accident, makesure you take all reasonable
efforts to try to identify theperson, or you might find
(21:18):
yourself out of luck.
So that's the important messageon that.
Adam Stirling (21:23):
All right, just under a minute left.
I don't know if we want to tryto squeeze this story into that,
or maybe save it for next time.
Michael Mulligan (21:29):
Sure, Maybe I'll just comment on it.
The final case was an appealfrom an 18-month sentence for a
sophisticated shopliftingenterprise and it was a case
where one person received an18-month sentence and another
person involved in theshoplifting enterprise got a
12-month jail sentence.
The person with the 18-monthone appealed it, alleging that
(21:50):
the parity principle wasn'tfollowed and that's a principle
that similar people for similaroffenses receive a similar
sentence.
And the appeal of that decisionfrom the Court of Appeal
dismissed the appeal on thebasis that the person who got
the longer 18-month sentence forthe sophisticated shoplifting
(22:11):
was different because they hadprior convictions from the
United Kingdom and they had aprior outstanding charge from
back east when they were engagedin that enterprise.
So that's the general conceptof parity in sentencing, but it
doesn't apply where you've gottwo offenders who have different
backgrounds.
Adam Stirling (22:26):
Michael Mulligan, with Mulligan Defense Lawyers,
it's Legally Speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much asalways.
Thank you so much, always apleasure.
Have a great day.
All right, you too.
We'll take a quick break.
Michael Mulligan (22:37):
We're back right after this.
It's time for Legally Speaking, joined by
barrister and solicitor, withMulligan Defence Lawyers,
Michael Mulligan.
Morning, Michael.
How are we doing?
Hey, good morning.
I'm doing great.
Always good to be here.
Lots of interesting stories onthe agenda this week.
Where shall we begin?
Michael Mulligan (00:13):
Well, I thought, before getting into the
cases that we've got on theofficial agenda for today, it
might be useful to provide someinsight to listeners about what
the charge approval processactually looks like in sexual
assault cases.
Perfect, thank you, and Ishould say you've correctly
expressed sort of what thecharge approval standard is for
(00:35):
Crown right.
They need to be satisfiedthere's a substantial likelihood
of conviction and it's in thepublic interest to proceed.
The legal threshold for thepolice to arrest somebody is
lower than that.
They just need to havereasonable grounds to believe
that somebody's committed anoffense and they can arrest them
.
Now here's how that plays outin 2024 in the context of a
(00:58):
sexual assault allegation.
One of the realities with sexualassault allegations is that
they ordinarily are allegationsof things that would virtually,
by their nature, have occurredin private and well and so,
unlike almost any other eventswhere you would expect there to
(01:18):
be things like some otherwitness who might have observed
something or something occurringin public right, some other
witness who might have observedsomething or something occurring
in public right, there is often, in sexual assault cases,
absolutely nothing other thanthe version of events provided
by the complainant.
Now, I should say, sometimesthere can be forensic evidence
(01:39):
like, for example, dna evidencethat might establish, for
example, there was sexualactivity involving two people,
but almost never will there beforensic evidence or independent
witnesses that would establishthings like whether sexual
activity was consensual.
And so in many sexual assaultcases, the investigation amounts
(02:01):
to almost nothing other than acomplainant saying this happened
to me.
And, moreover, the approachtaken often in modern times the
police engage in what they referto as a trauma-informed
interview of the complainant,which means asking them what
happened, frequently not askingprobing questions, saying to the
(02:25):
person you're very brave forhaving come forward, I believe
you, and then making sure youdon't interview them again.
So there wouldn't be anyinconsistent statement that in
many sexual assault cases in2024, is the sum total of the
case investigation, and so it is.
While I appreciate this may notbe a politic thing to be saying,
(02:45):
it is one of the offenses thatsomebody who is substantively
innocent is most likely to becharged with, and that is
because there's often nothingbut the version of events from
the complainant to support theallegation.
And that's not a comment on theparticular case of these police
officers and that person whotragically took his own life.
(03:07):
There could be more right.
Sometimes persons confess tosomething right, or sometimes
you know there are other thingswhich would give you a greater
degree of confidence.
But in 2024, the reality is whensomebody goes to the police and
says I was sexually assaulted,I did not consent to the sexual
activity in the bedroom lastnight, the reality is that the
(03:30):
police are going to ordinarilywind up simply arresting the
accused and Crown will wind upcharging them and the only
evidence is the version ofevents provided by the
complainant.
And unfortunately and I don'tthink this is how things should
proceed but the very first timethat anyone is asking sort of
probing, difficult questions ofthe complainant about the
(03:51):
version of events or what theysay happened is at trial, and so
it is a category of offensewhere there simply is a high
percentage of people who arecharged, who just are innocent,
and it also has the effect thatthere is a because of people who
are charged who just areinnocent, and it also has the
effect that there is a becauseof how those investigations
occur.
There is a of cases thatproceed to trial.
(04:14):
It's also a category of casefor which there is a high rate
of acquittals, and that isbecause there is no other
evidence to confirm it.
Right, the entire case ispremised on the version of
events the complainant provided,and because the police engage
in this trauma-informedinterview approach where they
don't challenge the person ontheir version of events or do
(04:36):
anything else, it's a matter of,yes, you see this happen, we
believe you, you're very bravefor having come forward, and
they're accused as arrested andcharges are approved on nothing
but that.
Now, there may be more in thiscase.
This is no comment on thatparticular central Saanich case,
but the listener should beaware that it is routine that
(04:58):
there be criminal chargesapproved with nothing but a
version of events from acomplainant, approved with
nothing but a version of eventsfrom a complainant.
And I suppose the flip side ofthat is, if that wasn't so, you
would not want to live in aworld where there could be
sexual assaults committed withimpunity in private, right,
because often there is going tobe nothing else and nothing else
(05:19):
would be expected.
Right, the entire case ispremised on somebody saying I
did not consent to this sexualactivity.
That's it and nothing else.
You would not expect there tobe another witness standing
there or video recording and nodna will tell us whether there
was consent or not, um, and sowe really do need to, where
there are these kind ofallegations made, not start from
(05:42):
the proposition that the personhaving made the complaint is
indeed the victim.
They may be right, but you know,the fact that a charge was
approved or somebody has made acomplaint does not necessarily
translate to that conclusion.
So, as the person who respondedto your earlier comments, the
appropriate way to respond tothe person would be the alleged
victim or the complainant,because at this point there
(06:05):
hasn't been anything more donethat would indicate any greater
degree of certainty about whattranspired.
So it's a tragic case and, as Isaid, I don't have any insight
into the evidence in thisparticular case.
Perhaps there is something morethan what I've indicated, but
if you have a historicallegation of sexual assault,
(06:29):
often the only evidence will bethe version of events provided
by the complainant.
I'm thinking.
Adam Stirling (06:35):
The other charge was breach of trust, and I know
Deputy Chief Wilson said thatthere was a covert operation,
that evidence was collected andI believe breach of trust
includes either a willful ordeliberate element in terms of
mens rea, doesn't it?
Michael Mulligan (06:47):
Yes, but we have to bear in mind, sir.
Well, what is that allegation?
It's been announced that thisis an allegation of sexual
assault, while I think on duty,and so what exactly that amounts
to is unclear, it's not welldefined here, and maybe there's
something else that wouldsupport that.
But again, it is not at alluncommon that there be sexual
(07:13):
assault allegations, somebodyarrested and Crown approving the
charges, with nothing insupport of them other than the
version of events provided bythe complainant.
And the complainant might bereliable.
And again, you wouldn't want tohave a state of affairs where,
unless there was some otherperson observing it, you could
not have a charge approved,right, that would not be an
acceptable state of affairs.
(07:34):
Right, that would allow actionswith impunity in private, and
that's not the state of affairsin Canada.
But it is just important toremember that, indeed, people
are arrested and charged withnothing more than that.
And the very first time thatanyone asks probing questions,
right, challenging what theperson said to say is at trial.
(07:55):
That part I think we couldimprove upon, right, I mean, I
appreciate why there's amotivation to want to be
supportive of people who areindeed victims of crime, right,
but when the approach taken isanything that a person says when
they allege that they are avictim of sexual assault is
treated as must be truthful andthe immediate response and that
(08:18):
is how at least some policeofficers investigate these
things treat the personimmediately as must be a truth
teller and a victim, becauseyou've alleged something's
happened and that might be so,and it may be so in many cases,
but it is certainly not so inevery case.
And so if you take thatapproach that anyone who makes
(08:38):
an allegation must be tellingthe truth, by virtue of the fact
that they made that allegation,and you have a policy in police
, as some police detachments do,that they are to engage in this
trauma-informed process, whichmeans not challenging the person
, trying not to interview themagain to avoid inconsistent
versions of events from them,and simply assuming whatever
(09:00):
you're being told must be true.
One of the results of that isthat you will have a higher
percentage of people who areinnocent charged with offenses,
and simply the fact of beingcharged with this kind of an
offense, arrested or chargedwith this kind of an offense,
has devastating implications forpeople, right, it's the end of
(09:20):
their reputation.
They're often fired from theiremployment, and we saw in this
case from Central Santa, themost tragic response to that
that having occurred withoutpermission, no matter ever
proceeding to trial or anythingelse.
But you can imagine that's theend of that person's reputation
and career, right?
Simply the fact of the you knowarrest and charge.
(09:41):
And so you know that'simportant as well, and I guess
really that's the point.
Not every person who makes anallegation is indeed a victim.
They might be, but oftenthere's nothing to support it
other than what they've allegedhas happened.
The other thing about that kindof charge, that kind of
(10:01):
activity, is it's an unusualfrom a criminal law perspective,
because most criminal offensesare things which no one would
ever consent to, right, I wasshot, or somebody stole my gold
bar, or you know somebody youknow defeated my wall.
Who's agreeing to that?
No one.
But by nature of sort of sexualassault allegations.
(10:25):
Usually that kind of activityis consensual, right, yes, and
so you know it can be even morechallenging where the particular
allegation being made is anallegation of something which
most of the time people arehappy to be doing together,
right, and so that makes it evenmore challenging, because it's
(10:47):
a very different sort ofallegation than when somebody's
calling and saying, hey,somebody stole my car or you
know, somebody stabbed me in thearm.
Well, who's agreeing to that?
No one.
But in many cases the activitywould ordinarily be activity
that both parties are happy andconsensually engaging in.
And it can be very difficult,particularly in historic cases,
(11:10):
with no other witnesses and noother evidence to try to sort
out, you know, whether thisparticular activity was
consensual or not, and the bestmethod we have for that is a
trial.
But I suppose I would say therewould be some changes to process
which I think would improvethings, which would include a
more skeptical and probingapproach taken by police
(11:33):
investigating these cases,bearing in mind the devastating
impact of this kind of arrest orcharge.
And you know there arepolitical reasons, you know
small political reasons, why youknow the police don't want to
be seen, as you know, skepticalor challenging of people that
are making these kinds of claims.
And we saw a few years ago aseries of articles that were run
(11:57):
in the Globe and Mail wherepolice were criticized for
concluding that sexual assaultallegations in some cases were
unfounded and they werecriticized as being insensitive
and that these things should betaken as by default true any
time an allegation is being made, and one of the responses we've
(12:19):
seen from police detachments tothat kind of criticism is that
sort of trauma informed yes,thank you, you're so brave, we
don't have any other questions,and you'll arrest the person and
then Crown's presented with areport that says you know,
so-and-so alleges this happened,ended with a report that says
you know, so-and-so alleges thishappened.
(12:39):
Okay, again, you're the boldcrown that wants to say well,
I've somehow determined on thebasis of this statement that
you're a liar, right, how arethey supposed to do that?
And so the charge gets approvedand off it goes to trial.
And I suppose the other elementof it is that some of those
parties involved police and theCrown and everyone say, well,
we'll leave that to the judgethat isn't going to be fired or
(13:01):
humiliated in the newspaper forbeing insensitive, concluding
that something was unfounded,and we'll just let that thing
sort out at trial.
But you know, this tragic localcase shows the implications of
just being arrested and chargedare devastating and whatever
happened here, the outcome is atragedy for the person who took
(13:22):
their own life and their familyand everyone else.
Whatever happened, you know,death wasn't the appropriate
response and so, anyways, Ithought all those things might
just be useful when people aretrying to assess.
You know, what can we make ofthe fact that there was an
arrest or a charge?
Does that necessarily meanthere was some kind of
compelling evidence to supportthe allegation?
(13:43):
And the answer, broadly, is no,it doesn't.
There might have been somethinghere, but that is not a
requirement for there to be anarrest or a charge approved.
So that's the insight on thatterrible case from Central
Sandwich.
Thank you, michael.
Adam Stirling (13:58):
That's helpful.
I really do appreciate it.
We'll take a quick break,Legally speaking, we'll continue
right after this.
All right back on the air hereat CFAX 1070, texture is 71010,
saying thank you, Michael andAdam.
We need this information tohelp us and I want to pass on my
thanks as well.
Michael mulligan and folks.
Regular listeners to thesegment know that michael
mulligan works at mulligandefense lawyers.
He represents the interests inthe criminal justice system of
(14:21):
people who have been accused ofcrimes, and so he knows exactly
what it does take and does nottake for people to find
themselves swept up in such asystem and what can happen.
So that's very beneficialinsight, michael.
We thank you for it.
We've got a couple of otherstories on the agenda today.
What shall we do?
We've got eight and a halfminutes.
Michael Mulligan (14:40):
Sure.
The next case on the agendainvolves an ICBC claim with
respect to a hit-and-runaccident, and there's some
really important lessons in thecase that I think many people
will be unaware of, and if youdon't know about them, you could
wind up not having insurancecoverage.
And so this particular case wasa decision involving a claim
(15:06):
that arose out of a hit and runaccident over in Vancouver.
It occurred in 2019.
And the fact pattern was astolen GMC pickup truck went
through a stop sign andbroadsided a Mercedes with three
people in it, t-boning it,causing it to spin around and
wind up off the road.
So a serious accident.
(15:26):
The person driving the truckgot out, described as likely
wearing a black or white hoodiethat's quite a possible range of
colors and fled the scene andwas never identified.
And so, then, what came fromthis was a claim for the
injuries sustained by the peoplethat were in the car the three
(15:46):
of them sustained by the peoplethat were in the car the three
of them.
Now, this process has changed alittle bit since 2019.
Because of no fault, with nofault, now you're basically
responsible.
Now that no one's responsible,you have to purchase your own
(16:09):
hit-and-run coverage forinjuries and some losses in a
hit-and-run accident.
So it's either specifichit-and-run coverage or
collision coverage, and if youdon't buy that you don't get
coverage other than medical andother expenses like that.
But hit-and-runs can occur inall kinds of circumstances.
You can have, like this, anaccident where a person runs
(16:29):
away.
You could have somebody whobacks into your car and doesn't
leave a note.
You can have somebody whosmashes into property and takes
off.
You can have somebody who stopsbut doesn't identify themselves
or gives false identification,things like that.
And so they can come in a wholevariety of ways.
But in this particular case,the way it works at least back
(16:51):
when people were responsible fortheir own actions.
The idea is, pursuant to thissection of the Insurance Motor
Vehicle Act, that if there's ahit and run accident of that
kind you would be permitted insome circumstances to sue ICBC
to try to get coverage for yourinjuries.
(17:14):
Now the landmine here is that aperson who is making that kind
of claim must make allreasonable efforts to ascertain
the identity of the other driverin order to be able to sue ICBC
, because ordinarily sort of acommon law right you can sue
(17:36):
somebody who causes some loss toyou If somebody backs into your
car or smashes your fence downor does something, you could sue
the person, but we have thisprovision that allows you to sue
ICBC, where you've made allreasonable efforts to ascertain
the identity of the person whotook off.
Now, in this particular case,the police showed up this is
(17:58):
obviously a stolen car and theperson fled and caused an
accident.
The police conducted aninvestigation for a little over
a week and they ultimatelyconcluded there's no other
investigation to be done.
We can't find this person Now.
The people who were injured inthe car did eventually get a
(18:19):
lawyer.
It looks like the lawyer knewwhat to do.
They hired at that point aprivate investigator to post
signs around the neighborhood,put it in the newspaper and so
on, but that produced nothing,probably because that was done a
year after the fact, and sothis case then wound up at trial
with can you proceed with thisclaim?
Have you made all reasonableefforts to ascertain the
(18:40):
identity of the person who tookoff?
And ultimately, the legalanswer to that was no, and so
the number of things in the casepeople need to know about if
you have this kind of thinghappen.
One is that there areexpectations that you make
(19:06):
prompt efforts, like the effortsby the investigator that was
hired by the lawyer a year later, were not sufficient because
they weren't done promptly.
And there's an expectation thatyou do things like put up signs
, looking for witnesses, run anad in the newspaper or otherwise
trying to drum up potentialwitnesses to the accident.
And it also makes clear thatyou can't just offload your
responsibility to the police.
It's your responsibility tomake all of these reasonable
efforts and barring a very highthreshold, which would be, oh,
(19:29):
this would just be impossible,fanciful things, which the judge
concluded here.
These weren't.
He said well, maybe you put upsigns, maybe some family member
would identify the person whocame home after stealing a car,
or maybe somebody in theneighborhood would have
recognized something, and so theresult of not doing that is no
claim is no claim.
(19:55):
And the judge in this case,which just came out, pointed out
what multiple other judges havepointed out, which is the
potential unfairness theseprovisions result in.
And the judge pointed out thatsome of those could be addressed
by requiring ICBC to tellsomeone hey, you've got an
obligation to start makinginquiries.
They don't have that obligationand they didn't hear.
(20:15):
And the net result is the threepeople injured in the car were
unsuccessful in their claim.
And so that's really what Ithink listeners need to know
about, which is, if you wind upin a circumstance where there's
a hit and run and appreciating,there are all kinds of different
permutations to that, right,you know, was the car tended
unattended?
Is it property damage?
Is it personal injury?
(20:36):
When did that happen Right?
Which would all have slightlydifferent legal implications.
The starting point is that youshould be making all reasonable
efforts to try to figure out whothat person was, and you know,
for example, that might include,you know, if you have some
opportunity to like record ortake a picture of the person's
license plate number, did you dothat Right?
(20:58):
If you were there, have youcanvassed?
Have you put up signs?
What have you done?
And it's not enough to just say, well, I was hurt or I was
taken to the hospital, or evenenough to say the police were
involved.
You've got to do it, and so ifyou are involved in any kind of
a hit-and-run accident, makesure you take all reasonable
efforts to try to identify theperson, or you might find
(21:18):
yourself out of luck.
So that's the important messageon that.
Adam Stirling (21:23):
All right, just under a minute left.
I don't know if we want to tryto squeeze this story into that,
or maybe save it for next time.
Michael Mulligan (21:29):
Sure, Maybe I'll just comment on it.
The final case was an appealfrom an 18-month sentence for a
sophisticated shopliftingenterprise and it was a case
where one person received an18-month sentence and another
person involved in theshoplifting enterprise got a
12-month jail sentence.
The person with the 18-monthone appealed it, alleging that
(21:50):
the parity principle wasn'tfollowed and that's a principle
that similar people for similaroffenses receive a similar
sentence.
And the appeal of that decisionfrom the Court of Appeal
dismissed the appeal on thebasis that the person who got
the longer 18-month sentence forthe sophisticated shoplifting
(22:11):
was different because they hadprior convictions from the
United Kingdom and they had aprior outstanding charge from
back east when they were engagedin that enterprise.
So that's the general conceptof parity in sentencing, but it
doesn't apply where you've gottwo offenders who have different
backgrounds.
Adam Stirling (22:26):
Michael Mulligan, with Mulligan Defense Lawyers,
it's Legally Speaking during thesecond half of our second hour
every Thursday.
Michael, thank you so much asalways.
Thank you so much, always apleasure.
Have a great day.
All right, you too.
We'll take a quick break.
Michael Mulligan (22:37):
We're back right after this.
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