August 28, 2025 • 19 mins
When does a driving mistake become a crime? The latest Court of Appeal ruling tackles this haunting question through the case of a driver who missed a red light, causing a collision that killed an 18-month-old child and seriously injured the father. Despite the devastating outcome, the court upheld the driver's acquittal on dangerous driving charges, drawing a careful distinction between tragedy and criminality.
The case illuminates the legal threshold for dangerous driving in Canada. Unlike provincial traffic violations, criminal dangerous driving requires a "marked departure from the standard of care of a reasonably prudent driver." This distinction carries enormous consequences in BC's no-fault insurance system, where criminal convictions can leave drivers personally liable for millions in damages with no insurance coverage. The ruling affirms that momentary lapses in attention, while potentially catastrophic, don't automatically cross into criminal territory.
Also examined was a fascinating estate case spanning nearly four decades. When a terminally ill woman created her will in 1984, she couldn't have anticipated her modest $50,000 home would be worth $1.2 million by the time her partner died 37 years later. The court had to determine whether her children should receive half the original value or half the current value—ultimately ruling that the original value prevailed. Finally, we explored how "unexplained wealth orders" in civil forfeiture cases can force individuals to account for suspicious assets like million-dollar properties and cash hoards that don't match their declared income.
These cases remind us how legal decisions shape lives in profound ways, whether determining criminal liability for split-second errors, interpreting decades-old intentions, or requiring explanations for suspiciously acquired wealth. Subscribe to our podcast for more insightful legal analysis that makes complex Canadian law accessible and meaningful.
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, joined by
Michael Mulligan Afternoon.
Michael, how are we doing?
Michael Mulligan (00:07):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:10):
Interesting stories on the agenda today,
including a momentary lapse ofattention driving into an
intersection, causing death andbodily harm.
Is that criminal code dangerousdriving?
Michael Mulligan (00:26):
dangerous driving.
Well, that's exactly what theCourt of Appeal just had to
wrestle with on an appeal by theCrown from an acquittal on that
fact pattern.
And the background of it isthis it's a case out of Lower
Mainland and it involved a mandriving a vehicle.
And I should say it'sinteresting because the accident
in question was recorded frommultiple angles and so there was
(00:49):
little doubt about whatfactually went on.
And the issue in the case waswhether the driving constituted
dangerous driving under thecriminal code.
And just by way of backgroundto know about that, dangerous
driving under the criminal codeis a fairly serious offense
right.
It is distinct from likedriving without due care and
(01:13):
attention under the ProvincialMotor Vehicle Act right, and
particularly in our currentcircumstance in BC, with no
fault.
It has really profoundimplications because if somebody
is convicted of a criminal codedriving offense, not only does
no fault not apply and theperson can be sued civilly for
(01:34):
damages, but in addition it alsomeans that you're in breach of
your insurance policy.
So you're completely on yourown, potentially for, you know,
millions of dollars in damagesor loss, and so it really has a
real significant impact on whathappens Now.
In fact, in this case.
This man was driving along inhis vehicle and driving in a
(01:55):
completely unremarkable way.
The judge found that he was notspeeding, he wasn't driving
erratically.
Testing confirmed he had noalcohol or drugs in his system.
His phone hadn't gone off.
They checked the phone.
He was driving in a straightline at or below the speed limit
.
Nothing unusual about how hewas driving.
His speed varied between 41 and50 kilometers an hour and they
(02:18):
could calculate it prettyprecisely because it was on
video and they had data from hiscar.
Everyone agreed nothing unusualthere.
He just drove through a redlight is what happened.
For reasons unknown, the judgeconcluded he just didn't see the
red light and he drove throughthe red light.
Another car hit him who wascoming through in a green light,
causing the driver who wentthrough the red light vehicle to
(02:42):
roll over onto the sidewalk andtragically it hit a man
carrying his 18-month-old.
The man was very seriouslyinjured and the 18-month-old was
killed instantly.
So tragic accident.
He was charged with dangerousdriving and now there was at one
point a legal debate in Canadaabout what the mens rea, the
(03:04):
mental requirement for theoffense of dangerous driving,
should be right.
There was at one point a debateabout whether that should
require what's referred to asadvert negligence.
Like, does that requiresomebody to say, hey, I'm about
to do something dangerous, I'mgoing to go do a street race or
something right, or is itsomething less than that?
And eventually the SupremeCourt of Canada concluded that
(03:28):
it does not require what wouldbe referred to as advertent
negligence.
The Crown doesn't need to provethe person intentionally did
something careless, like youknow, having a street race in
the middle of Douglas Street, orsomething right.
And so what's applied is thismodified objective standard and
what's asked of a judge is todetermine whether the driving
was objectively dangerous.
(03:49):
Right, and no doubt goingthrough a red light is dangerous
.
That's not complicated.
But the issue would be is thisa marked departure from the
standard of care of a reasonablyprudent driver?
That's the language used of areasonably prudent driver.
That's the language used.
And in this particular case thetrial judge, having heard three
days of evidence, watching allthe videos everything was
(04:11):
admitted in terms of whathappened right Concluded that
this was not a marked departurefrom the standard of care of a
reasonably prudent driver.
And in acquitting the man, thejudge said this, unfortunately
said a momentary lapse ofjudgment, without more, cannot
establish the actus rea and mensrea of the offense of dangerous
(04:31):
driving.
Now that statement is notcorrect legally and that's
because there is appellateauthority for the proposition
that a momentary lapse ofjudgment.
You know somebody, you knowjust something goes wrong.
You don't see the red light,right?
Yeah you, it could constitute amarked departure from the
standard of care, even thoughthere's appellate authority for
(04:52):
the idea that a momentary lapseof judgment wouldn't usually
result in that sort of highthreshold.
But it could right.
That's really what the lawamounts to.
And in saying that, the Courtof Appeal and the Supreme Court
of Canada said things that, forexample, case law realizes that
even the most prudent driverfrom time to time might
(05:13):
experience a momentary lack ofattention or judgment, and while
that could constitute a markeddeparture usually it wouldn't
but it might.
And so the trial judgeacquitted the driver, saying
well, look, everything was fine.
For some unknown reason he justdidn't see the red light and so
acquitted him.
(05:33):
The Crown appealed the acquittaland, as the Court of Appeal
pointed out, the circumstancesin which the Crown can appeal
are relatively modest andthere's a.
Acquittals aren't lightlyoverturned.
And they pointed out the Crownhas no right of appeal.
If they argue that thisdecision was unreasonable or
that the judge should haveweighed the evidence up
differently, the judge, theCrown would have to show that
(05:56):
there has to be sort of afundamental legal error that
tainted the outcome andfurthermore, that there'd be a
reasonable degree of certaintythat the verdict would not
necessarily have been the samehad the error not occurred.
So that statement that thejudge made as part of her long
reasons was not correct.
(06:16):
But the Court of Appeal went onto point out that when there is
an appeal, it's not a matter ofpicking through line by line a
judge's reasons to see whetheryou can find that they said
anything that was incorrect.
Maybe the momentary lapse ofjudgment is not enough, for an
appeal might be a way to put it.
And so here the Court of Appealwent on to look at the whole
(06:37):
analysis because, as judges arerequired to do, they have to
explain themselves.
They don't just make a decision.
And here the Court of Appealpointed out that that particular
line is wrong.
It may be that usually themomentary lapse of judgment
wouldn't be enough.
It could be.
But the Court of Appeal pointedout that when you read all of
the judges' reasons, she went onto analyze the correct cases.
(06:59):
She went on to analyze thecorrect statements of the law.
She did analyze it in terms ofwhat ultimately that test is,
whether it's a marked departurefrom the standard of care of a
reasonably prudent driver, andso on a two to one split, the
Court of Appeal dismissed theCrown's appeal from the
conviction and upheld theacquittal.
(07:21):
But there are a few things inthat I thought were interesting.
First of all, that sort ofanalysis on appeal.
But it's also important forpeople to know that's how the
standard is expressed and, asyou can imagine, there is a wide
range for discretion whensorting out.
You know, is that a markeddeparture from the standard of
care?
After all, people don't usuallymake a mistake and go through a
(07:42):
red light.
And it's also a reminder forpeople because of course driving
is often sort of an autonomicthing.
But you know, people areexperienced drivers are not
consciously thinking of everypress of the pedal and every
turn of the wheel Right People,it's sort of an activity.
Sometimes people are doing itin a virtually automatic,
reflexive way, because they doit so frequently, like walking,
(08:05):
you don't think left foot, rightfoot, left foot, right foot,
you just walk down the streetright.
And so the case is also anexample of just how precarious
things are.
Driving is, of course,inherently dangerous, but just
how even a momentary somethingright, whatever we will never
know why the man didn't see thered light can turn into
(08:29):
potential criminal liability andnot only a tragedy and a death.
But you know, a person could goto prison, they could be
financially ruined, they couldhave no insurance, it could have
massive implications and all ofthat really comes down to that
decision a number of years agoabout, well, what's required for
this concept of dangerousdriving, bearing in mind that
(08:51):
ordinarily the criminal law isconcerned with people doing
things intentionally wrong.
You know, like we don'tcriminally punish people for
tripping and falling into others, right, we punish people for
pushing them, not falling down.
But the way that's beeninterpreted in terms of this
modified objective test is itturns into an assessment as to
(09:13):
whether it would be a markeddeparture from that standard of
care.
Sometimes, when I'm describingthat to people and it doesn't
really fit here, but sometimesthe way I would describe that to
people would be, you know, ifit's the kind of driving which,
if people saw it, they would say, oh, my goodness, this person's
going to kill someone you know,and would sort of phone into
the police or something about it, right, rather than just, oh,
(09:33):
that person, you know, maybethey shouldn't be drinking that
super big gulp while they're,you know, driving down Douglas
Street or putting on theirlipstick or something right, but
that's the outcome of this case, at least on a two to one split
, and it's also, I think, justcause for reflection to people
(09:54):
about how we handle these things.
Not every tragedy, of course,is a crime, and none of that
should, nor should this decisionbe taken to suggest that
somehow what occurred here isnot an absolute tragedy for the
family of the and the maninvolved at the 18 month old.
It absolutely is.
But, um, you know, we are all,of course, very fallible.
Um and uh, you know.
I think many of us couldappreciate how it is.
(10:14):
Somebody might make a momentarymistake, sober, nothing else is
wrong.
They just made a mistake, theydidn't see the light.
Um and uh turned into not onlya tragedy but years of
litigation that eventuallyresulted in this.
So that's the latest from theCourt of Appeal on what is and
what is not dangerous driving.
Adam Stirling (10:32):
Michael Mulgan, with Mulgan Defense Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues onCFAX 1070, joined as always by
Michael Mulligan with MulliganDefense Lawyers.
Michael, what's next on ouragenda?
Michael Mulligan (10:45):
Next on the agenda is an interesting
decision also out of the Courtof Appeal just came out, and it
deals with interpreting a willand how that's supposed to work
in a circumstance which Iimagine isn't terribly uncommon
these days.
The background of it it goesall the way back to 1984.
And back in 1984, the woman whowas making her will was
(11:08):
terminally ill.
She knew that she was inhospital and five days before
she died she severed the jointtenancy in the home that she
owned with her common-lawpartner and then, two days
before she passed away, shecreated a new will.
Anybody ask why?
Well, the consideration, Isuppose, for her back in 1984
(11:30):
was that she had four adultchildren from a prior
relationship and it appeared shewanted to achieve the objective
of having her current partnerbe able to continue to live in
the home that they purchasedtogether but wanted to see
eventually her half interest init be given to her kids.
And that concept of severingthe joint tenancy is that in
(11:53):
many cases property are owned injoint tenancy, meaning if two
people own it like a husband andwife, if one of them passes
away, the other person just getsthe full benefit of the
property.
Right, they then own it like ahusband and wife.
If one of them passes away, theother person just gets the full
benefit of the property, right?
They then own it, doesn't evengo through a will, and so in
this sort of a circumstance theperson was concerned about, well
, I want my kids to get somebenefit of this when, eventually
(12:14):
, my partner passes away.
And to achieve that, theycreated or she created in her
will a relatively uniqueprovision after severing the
joint tenancy, saying that hercurrent partner shall receive
the benefit of her divided halfinterest, right?
Remember, she severed it in theproperty and that he's
permitted to use it for the restof his life, as long as he
(12:37):
lives there, as long as he livesthere.
But if he sells it, then he'sgot to provide to the kids the
value of her half interest minusthe amount of the mortgage,
right?
Or eventually, when he dies,that should be the result.
So that's what it said.
Now, her common-law partner fromback in 1984, she passed away
(12:58):
just a few days after doing this.
Two days before her death, shemade the will.
Now, he remarried and led avery long life continuing to
live in that very home and helived for another 37 years
living in the same home, paidoff the mortgage, lived there
with his new spouse.
No longer was there anymortgage.
(13:19):
The original clause said thatthe adult kids were not
responsible for paying for anyof the taxes, insurance, repairs
or anything else to do with thehome.
So he lived there for 37 yearsand then passed away.
And then there are two possibleinterpretations of what the
will indicated the kids, theadult children.
I should say this this is theother thing that made this
(13:39):
really meaningful.
She could not have foreseenwhat would have happened to real
estate prices in the lowermainland between 1984 and 2001.
Oh yeah, and so the home backin 1984 was worth about $50,000
and it had a $22,000 mortgage onit, right?
Adam Stirling (13:56):
Yeah.
Michael Mulligan (13:57):
You know, it's the price of a car in Vancouver
now and it was valued in 2001at $1.2 million and had no
mortgage on it.
So two possible ways tointerpret what she had said.
The kids' argument.
The adult children's argumentwas well, what she meant to do
was to give her then partner alife interest in her half of it
(14:19):
and they should get what amountsto $600,000 divided up amongst
half of them, the half value ofher home.
The alternative interpretation,argued by now the widow of this
man right, they're 37 years,married in 1997, her argument is
well, no, no, what they areentitled to, pursuant to how
(14:40):
that was drafted, is they wereentitled to the value of the
home at the time she passed away.
So one half of $50,000 minusher half of the mortgage means
that they would each receive 25%of $14,000.
So the difference is do youdivide up $600,000 or $14,000.
(15:01):
?
So the difference is do youdivide up $600,000 or $14,000?
And this first of all went to.
So it was brought to court.
This provision.
You can come to court to have ajudge determine how the will is
to be interpreted, and both theinitial judge and now the court
of appeal looking at thisconcluded that.
You know, of course the womancould not have foreseen what
(15:22):
would have happened to the realestate market, nor would she
have foreseen the fact that herthen partner would have lived at
home for a very long life 37years and even though it might
now be viewed as unfair from thekid's perspective, the language
of what was said thereincluding, for example and the
judge paid particular attentionto the fact that the way the
(15:44):
amount was to be calculated wasto be the market value less one
half of the indebtedness rightthe indebtedness was $22,000.
The market value was $50,000.
And they said look, you know,the task is not to try to
redraft the will in somefairness way.
The purpose of this kind of aninterpretation is to try to
(16:06):
establish, well, what was thewish of the testator at the time
this will was created, andthere's no reason to think she
had planned for what thisproperty might be worth in 37
years or all of that.
And so the conclusion was that,no, the way this is worded, it
would be the $14,000, what itwas, what her half share was
worth at the time, minus themortgage which, of course, he
(16:28):
eventually paid off, presumablyliving there for 37 years.
And so that's what the kidswill get.
And so it's interesting in termsof people trying to sort out
this problem, which isn't goingto be a unique one, but it's.
How are these things to beconsidered?
And a reminder that generally,you know, when a court is
interpreting a will, thestarting point is to try to
(16:50):
determine what was the primaryobjective is, what were the
intentions of the testator, whatwere they intending, and to try
to give meaning to that, ratherthan have the judge sort of sit
in a sort of armchair way nowand say, well, what would I have
done?
And so that's the latest reportof appeal and how that's to be
interpreted in terms of divisionof property and a will.
Adam Stirling (17:11):
All right, we've got a minute and a half
remaining.
Michael Mulligan (17:15):
So final case people should know about.
It's an interesting and fairlyunique case involving civil
forfeiture and it involves thisconcept of what's called an
unexplained wealth order shouldknow about.
It's an interesting and fairlyunique case involving civil
forfeiture and it involves thisconcept of what's called an
unexplained wealth order, andthe background of it is that a
man and woman own variousproperties worth millions of
dollars, and the police wound upgetting called to one of them
as a result of gunshots on ablood trail, and in the
(17:37):
properties eventually were foundthings including $1.495 million
in Canadian cash, a bunch of UScash, signs of marijuana grow
operations and so on, and whenthen they looked at the income
tax returns for these two people, they had very modest amounts
over the past 20 years they haddeclared as income income.
(18:01):
Also, interestingly, in one ofthe homes there was paperwork
from a woman indicating she wasapplying to get a $1,000 child
benefit, claiming she had verylittle income, when she in fact
appears to have very large sumsof money being deposited into
the bank and owning all theseproperties.
And so there is provision inthe civil forfeiture legislation
to allow the director of civilforfeitures to apply for one of
(18:21):
these things called aunexplained wealth order, and
what that requires is itrequires, in this sort of a
circumstance, where a judge issatisfied of all the
requirements for one of those,that the people against whom,
ultimately, the application forcivil forfeiture is made it
requires them to provide,basically, an explanation and
(18:42):
accounting for.
Well, how is it that you ownmillions of dollars in houses
when you claim to make $22,000 ayear?
Adam Stirling (18:49):
Where did that pile of cash come from and what
was going on with?
Michael Mulligan (18:52):
the marijuana grow operations.
The woman involved, trying toresist this, suggested that the
money was quote lucky money,close quote and had photographs
of red envelopes supporting thisclaim.
But there was no actualevidence about that.
So the net outcome here peoplejust be aware of it, as people
can be required to make this,comply with this kind of an
order and provide a fullexplanation for how did you wind
(19:14):
up with all this money in thesehouses?
When you say you made verylittle in your income tax
returns, so that's what anunexplained wealth order is.
That's the latest on that worldof civil forfeiture.
Adam Stirling (19:25):
All right, michael Mulligan, with Mulligan
Defense Lawyers, legallyspeaking, during the second half
of our second hour everyThursday.
Thank you so much.
Thanks so much.
Always great to be here.
All right, quick break News isnext.
It's time for our regular segment with Barrister
and Solicitor, with MulliganDefence Lawyers, joined by
Michael Mulligan Afternoon.
Michael, how are we doing?
Michael Mulligan (00:07):
Hey, good afternoon.
I'm doing great.
Always good to be here.
Adam Stirling (00:10):
Interesting stories on the agenda today,
including a momentary lapse ofattention driving into an
intersection, causing death andbodily harm.
Is that criminal code dangerousdriving?
Michael Mulligan (00:26):
dangerous driving.
Well, that's exactly what theCourt of Appeal just had to
wrestle with on an appeal by theCrown from an acquittal on that
fact pattern.
And the background of it isthis it's a case out of Lower
Mainland and it involved a mandriving a vehicle.
And I should say it'sinteresting because the accident
in question was recorded frommultiple angles and so there was
(00:49):
little doubt about whatfactually went on.
And the issue in the case waswhether the driving constituted
dangerous driving under thecriminal code.
And just by way of backgroundto know about that, dangerous
driving under the criminal codeis a fairly serious offense
right.
It is distinct from likedriving without due care and
(01:13):
attention under the ProvincialMotor Vehicle Act right, and
particularly in our currentcircumstance in BC, with no
fault.
It has really profoundimplications because if somebody
is convicted of a criminal codedriving offense, not only does
no fault not apply and theperson can be sued civilly for
(01:34):
damages, but in addition it alsomeans that you're in breach of
your insurance policy.
So you're completely on yourown, potentially for, you know,
millions of dollars in damagesor loss, and so it really has a
real significant impact on whathappens Now.
In fact, in this case.
This man was driving along inhis vehicle and driving in a
(01:55):
completely unremarkable way.
The judge found that he was notspeeding, he wasn't driving
erratically.
Testing confirmed he had noalcohol or drugs in his system.
His phone hadn't gone off.
They checked the phone.
He was driving in a straightline at or below the speed limit
.
Nothing unusual about how hewas driving.
His speed varied between 41 and50 kilometers an hour and they
(02:18):
could calculate it prettyprecisely because it was on
video and they had data from hiscar.
Everyone agreed nothing unusualthere.
He just drove through a redlight is what happened.
For reasons unknown, the judgeconcluded he just didn't see the
red light and he drove throughthe red light.
Another car hit him who wascoming through in a green light,
causing the driver who wentthrough the red light vehicle to
(02:42):
roll over onto the sidewalk andtragically it hit a man
carrying his 18-month-old.
The man was very seriouslyinjured and the 18-month-old was
killed instantly.
So tragic accident.
He was charged with dangerousdriving and now there was at one
point a legal debate in Canadaabout what the mens rea, the
(03:04):
mental requirement for theoffense of dangerous driving,
should be right.
There was at one point a debateabout whether that should
require what's referred to asadvert negligence.
Like, does that requiresomebody to say, hey, I'm about
to do something dangerous, I'mgoing to go do a street race or
something right, or is itsomething less than that?
And eventually the SupremeCourt of Canada concluded that
(03:28):
it does not require what wouldbe referred to as advertent
negligence.
The Crown doesn't need to provethe person intentionally did
something careless, like youknow, having a street race in
the middle of Douglas Street, orsomething right.
And so what's applied is thismodified objective standard and
what's asked of a judge is todetermine whether the driving
was objectively dangerous.
(03:49):
Right, and no doubt goingthrough a red light is dangerous
.
That's not complicated.
But the issue would be is thisa marked departure from the
standard of care of a reasonablyprudent driver?
That's the language used of areasonably prudent driver.
That's the language used.
And in this particular case thetrial judge, having heard three
days of evidence, watching allthe videos everything was
(04:11):
admitted in terms of whathappened right Concluded that
this was not a marked departurefrom the standard of care of a
reasonably prudent driver.
And in acquitting the man, thejudge said this, unfortunately
said a momentary lapse ofjudgment, without more, cannot
establish the actus rea and mensrea of the offense of dangerous
(04:31):
driving.
Now that statement is notcorrect legally and that's
because there is appellateauthority for the proposition
that a momentary lapse ofjudgment.
You know somebody, you knowjust something goes wrong.
You don't see the red light,right?
Yeah you, it could constitute amarked departure from the
standard of care, even thoughthere's appellate authority for
(04:52):
the idea that a momentary lapseof judgment wouldn't usually
result in that sort of highthreshold.
But it could right.
That's really what the lawamounts to.
And in saying that, the Courtof Appeal and the Supreme Court
of Canada said things that, forexample, case law realizes that
even the most prudent driverfrom time to time might
(05:13):
experience a momentary lack ofattention or judgment, and while
that could constitute a markeddeparture usually it wouldn't
but it might.
And so the trial judgeacquitted the driver, saying
well, look, everything was fine.
For some unknown reason he justdidn't see the red light and so
acquitted him.
(05:33):
The Crown appealed the acquittaland, as the Court of Appeal
pointed out, the circumstancesin which the Crown can appeal
are relatively modest andthere's a.
Acquittals aren't lightlyoverturned.
And they pointed out the Crownhas no right of appeal.
If they argue that thisdecision was unreasonable or
that the judge should haveweighed the evidence up
differently, the judge, theCrown would have to show that
(05:56):
there has to be sort of afundamental legal error that
tainted the outcome andfurthermore, that there'd be a
reasonable degree of certaintythat the verdict would not
necessarily have been the samehad the error not occurred.
So that statement that thejudge made as part of her long
reasons was not correct.
(06:16):
But the Court of Appeal went onto point out that when there is
an appeal, it's not a matter ofpicking through line by line a
judge's reasons to see whetheryou can find that they said
anything that was incorrect.
Maybe the momentary lapse ofjudgment is not enough, for an
appeal might be a way to put it.
And so here the Court of Appealwent on to look at the whole
(06:37):
analysis because, as judges arerequired to do, they have to
explain themselves.
They don't just make a decision.
And here the Court of Appealpointed out that that particular
line is wrong.
It may be that usually themomentary lapse of judgment
wouldn't be enough.
It could be.
But the Court of Appeal pointedout that when you read all of
the judges' reasons, she went onto analyze the correct cases.
(06:59):
She went on to analyze thecorrect statements of the law.
She did analyze it in terms ofwhat ultimately that test is,
whether it's a marked departurefrom the standard of care of a
reasonably prudent driver, andso on a two to one split, the
Court of Appeal dismissed theCrown's appeal from the
conviction and upheld theacquittal.
(07:21):
But there are a few things inthat I thought were interesting.
First of all, that sort ofanalysis on appeal.
But it's also important forpeople to know that's how the
standard is expressed and, asyou can imagine, there is a wide
range for discretion whensorting out.
You know, is that a markeddeparture from the standard of
care?
After all, people don't usuallymake a mistake and go through a
(07:42):
red light.
And it's also a reminder forpeople because of course driving
is often sort of an autonomicthing.
But you know, people areexperienced drivers are not
consciously thinking of everypress of the pedal and every
turn of the wheel Right People,it's sort of an activity.
Sometimes people are doing itin a virtually automatic,
reflexive way, because they doit so frequently, like walking,
(08:05):
you don't think left foot, rightfoot, left foot, right foot,
you just walk down the streetright.
And so the case is also anexample of just how precarious
things are.
Driving is, of course,inherently dangerous, but just
how even a momentary somethingright, whatever we will never
know why the man didn't see thered light can turn into
(08:29):
potential criminal liability andnot only a tragedy and a death.
But you know, a person could goto prison, they could be
financially ruined, they couldhave no insurance, it could have
massive implications and all ofthat really comes down to that
decision a number of years agoabout, well, what's required for
this concept of dangerousdriving, bearing in mind that
(08:51):
ordinarily the criminal law isconcerned with people doing
things intentionally wrong.
You know, like we don'tcriminally punish people for
tripping and falling into others, right, we punish people for
pushing them, not falling down.
But the way that's beeninterpreted in terms of this
modified objective test is itturns into an assessment as to
(09:13):
whether it would be a markeddeparture from that standard of
care.
Sometimes, when I'm describingthat to people and it doesn't
really fit here, but sometimesthe way I would describe that to
people would be, you know, ifit's the kind of driving which,
if people saw it, they would say, oh, my goodness, this person's
going to kill someone you know,and would sort of phone into
the police or something about it, right, rather than just, oh,
(09:33):
that person, you know, maybethey shouldn't be drinking that
super big gulp while they're,you know, driving down Douglas
Street or putting on theirlipstick or something right, but
that's the outcome of this case, at least on a two to one split
, and it's also, I think, justcause for reflection to people
(09:54):
about how we handle these things.
Not every tragedy, of course,is a crime, and none of that
should, nor should this decisionbe taken to suggest that
somehow what occurred here isnot an absolute tragedy for the
family of the and the maninvolved at the 18 month old.
It absolutely is.
But, um, you know, we are all,of course, very fallible.
Um and uh, you know.
I think many of us couldappreciate how it is.
(10:14):
Somebody might make a momentarymistake, sober, nothing else is
wrong.
They just made a mistake, theydidn't see the light.
Um and uh turned into not onlya tragedy but years of
litigation that eventuallyresulted in this.
So that's the latest from theCourt of Appeal on what is and
what is not dangerous driving.
Adam Stirling (10:32):
Michael Mulgan, with Mulgan Defense Lawyers.
Legally Speaking will continueright after this.
Legally Speaking continues onCFAX 1070, joined as always by
Michael Mulligan with MulliganDefense Lawyers.
Michael, what's next on ouragenda?
Michael Mulligan (10:45):
Next on the agenda is an interesting
decision also out of the Courtof Appeal just came out, and it
deals with interpreting a willand how that's supposed to work
in a circumstance which Iimagine isn't terribly uncommon
these days.
The background of it it goesall the way back to 1984.
And back in 1984, the woman whowas making her will was
(11:08):
terminally ill.
She knew that she was inhospital and five days before
she died she severed the jointtenancy in the home that she
owned with her common-lawpartner and then, two days
before she passed away, shecreated a new will.
Anybody ask why?
Well, the consideration, Isuppose, for her back in 1984
(11:30):
was that she had four adultchildren from a prior
relationship and it appeared shewanted to achieve the objective
of having her current partnerbe able to continue to live in
the home that they purchasedtogether but wanted to see
eventually her half interest init be given to her kids.
And that concept of severingthe joint tenancy is that in
(11:53):
many cases property are owned injoint tenancy, meaning if two
people own it like a husband andwife, if one of them passes
away, the other person just getsthe full benefit of the
property.
Right, they then own it like ahusband and wife.
If one of them passes away, theother person just gets the full
benefit of the property, right?
They then own it, doesn't evengo through a will, and so in
this sort of a circumstance theperson was concerned about, well
, I want my kids to get somebenefit of this when, eventually
(12:14):
, my partner passes away.
And to achieve that, theycreated or she created in her
will a relatively uniqueprovision after severing the
joint tenancy, saying that hercurrent partner shall receive
the benefit of her divided halfinterest, right?
Remember, she severed it in theproperty and that he's
permitted to use it for the restof his life, as long as he
(12:37):
lives there, as long as he livesthere.
But if he sells it, then he'sgot to provide to the kids the
value of her half interest minusthe amount of the mortgage,
right?
Or eventually, when he dies,that should be the result.
So that's what it said.
Now, her common-law partner fromback in 1984, she passed away
(12:58):
just a few days after doing this.
Two days before her death, shemade the will.
Now, he remarried and led avery long life continuing to
live in that very home and helived for another 37 years
living in the same home, paidoff the mortgage, lived there
with his new spouse.
No longer was there anymortgage.
(13:19):
The original clause said thatthe adult kids were not
responsible for paying for anyof the taxes, insurance, repairs
or anything else to do with thehome.
So he lived there for 37 yearsand then passed away.
And then there are two possibleinterpretations of what the
will indicated the kids, theadult children.
I should say this this is theother thing that made this
(13:39):
really meaningful.
She could not have foreseenwhat would have happened to real
estate prices in the lowermainland between 1984 and 2001.
Oh yeah, and so the home backin 1984 was worth about $50,000
and it had a $22,000 mortgage onit, right?
Adam Stirling (13:56):
Yeah.
Michael Mulligan (13:57):
You know, it's the price of a car in Vancouver
now and it was valued in 2001at $1.2 million and had no
mortgage on it.
So two possible ways tointerpret what she had said.
The kids' argument.
The adult children's argumentwas well, what she meant to do
was to give her then partner alife interest in her half of it
(14:19):
and they should get what amountsto $600,000 divided up amongst
half of them, the half value ofher home.
The alternative interpretation,argued by now the widow of this
man right, they're 37 years,married in 1997, her argument is
well, no, no, what they areentitled to, pursuant to how
(14:40):
that was drafted, is they wereentitled to the value of the
home at the time she passed away.
So one half of $50,000 minusher half of the mortgage means
that they would each receive 25%of $14,000.
So the difference is do youdivide up $600,000 or $14,000.
(15:01):
?
So the difference is do youdivide up $600,000 or $14,000?
And this first of all went to.
So it was brought to court.
This provision.
You can come to court to have ajudge determine how the will is
to be interpreted, and both theinitial judge and now the court
of appeal looking at thisconcluded that.
You know, of course the womancould not have foreseen what
(15:22):
would have happened to the realestate market, nor would she
have foreseen the fact that herthen partner would have lived at
home for a very long life 37years and even though it might
now be viewed as unfair from thekid's perspective, the language
of what was said thereincluding, for example and the
judge paid particular attentionto the fact that the way the
(15:44):
amount was to be calculated wasto be the market value less one
half of the indebtedness rightthe indebtedness was $22,000.
The market value was $50,000.
And they said look, you know,the task is not to try to
redraft the will in somefairness way.
The purpose of this kind of aninterpretation is to try to
(16:06):
establish, well, what was thewish of the testator at the time
this will was created, andthere's no reason to think she
had planned for what thisproperty might be worth in 37
years or all of that.
And so the conclusion was that,no, the way this is worded, it
would be the $14,000, what itwas, what her half share was
worth at the time, minus themortgage which, of course, he
(16:28):
eventually paid off, presumablyliving there for 37 years.
And so that's what the kidswill get.
And so it's interesting in termsof people trying to sort out
this problem, which isn't goingto be a unique one, but it's.
How are these things to beconsidered?
And a reminder that generally,you know, when a court is
interpreting a will, thestarting point is to try to
(16:50):
determine what was the primaryobjective is, what were the
intentions of the testator, whatwere they intending, and to try
to give meaning to that, ratherthan have the judge sort of sit
in a sort of armchair way nowand say, well, what would I have
done?
And so that's the latest reportof appeal and how that's to be
interpreted in terms of divisionof property and a will.
Adam Stirling (17:11):
All right, we've got a minute and a half
remaining.
Michael Mulligan (17:15):
So final case people should know about.
It's an interesting and fairlyunique case involving civil
forfeiture and it involves thisconcept of what's called an
unexplained wealth order shouldknow about.
It's an interesting and fairlyunique case involving civil
forfeiture and it involves thisconcept of what's called an
unexplained wealth order, andthe background of it is that a
man and woman own variousproperties worth millions of
dollars, and the police wound upgetting called to one of them
as a result of gunshots on ablood trail, and in the
(17:37):
properties eventually were foundthings including $1.495 million
in Canadian cash, a bunch of UScash, signs of marijuana grow
operations and so on, and whenthen they looked at the income
tax returns for these two people, they had very modest amounts
over the past 20 years they haddeclared as income income.
(18:01):
Also, interestingly, in one ofthe homes there was paperwork
from a woman indicating she wasapplying to get a $1,000 child
benefit, claiming she had verylittle income, when she in fact
appears to have very large sumsof money being deposited into
the bank and owning all theseproperties.
And so there is provision inthe civil forfeiture legislation
to allow the director of civilforfeitures to apply for one of
(18:21):
these things called aunexplained wealth order, and
what that requires is itrequires, in this sort of a
circumstance, where a judge issatisfied of all the
requirements for one of those,that the people against whom,
ultimately, the application forcivil forfeiture is made it
requires them to provide,basically, an explanation and
(18:42):
accounting for.
Well, how is it that you ownmillions of dollars in houses
when you claim to make $22,000 ayear?
Adam Stirling (18:49):
Where did that pile of cash come from and what
was going on with?
Michael Mulligan (18:52):
the marijuana grow operations.
The woman involved, trying toresist this, suggested that the
money was quote lucky money,close quote and had photographs
of red envelopes supporting thisclaim.
But there was no actualevidence about that.
So the net outcome here peoplejust be aware of it, as people
can be required to make this,comply with this kind of an
order and provide a fullexplanation for how did you wind
(19:14):
up with all this money in thesehouses?
When you say you made verylittle in your income tax
returns, so that's what anunexplained wealth order is.
That's the latest on that worldof civil forfeiture.
Adam Stirling (19:25):
All right, michael Mulligan, with Mulligan
Defense Lawyers, legallyspeaking, during the second half
of our second hour everyThursday.
Thank you so much.
Thanks so much.
Always great to be here.
All right, quick break News isnext.
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