October 23, 2025 • 21 mins
A guilty plea, a forgotten past, and a courtroom test of how identity meets justice. We open with a 2011 assault case resolved by a joint submission: an 18‑month conditional sentence after the accused conceded his force exceeded self‑defence. Years later, he discovered his father was Indigenous and obtained status, then sought an out‑of‑time appeal to revisit both plea and sentence. We walk through the legal gatekeeping for late appeals—intention, prejudice, merit, and the interests of justice—and unpack why section 718.2(e) and the Supreme Court’s Gladue jurisprudence require more than ancestry alone. Without a Gladue report or concrete evidence tying personal background to the offence and sentence, the Court of Appeal found no basis to disturb a non‑custodial disposition, underscoring the balance between individualized justice and finality.
Then the floor drops out on a modern confidence game. A Victoria woman was lured by “1% per day” crypto returns, saw early profits, re‑mortgaged her home, and pushed $671,000 through a cryptocurrency exchange to a third‑party wallet. Could the exchange be liable in negligence? We break down duty of care, standard of care, causation, and damages, and why the court concluded the platform did everything a reasonable exchange should: prominent written warnings, live calls from staff and a supervisor urging her to stop, risk scoring on the destination wallet, and documented customer pressure to proceed. The claim failed, and the case now stands as a sharp warning about irreversible blockchain transfers and the psychology of fraud.
If you care about Canadian criminal law, Indigenous sentencing principles, or investor protection in crypto, this story delivers practical takeaways: build a real record for Gladue considerations; treat “guaranteed” returns as a red flag; and know that platforms can warn you, but they can’t always save you. Like what you heard? Follow the show, share it with a friend, and leave a quick review to help others find thoughtful legal analysis that cuts through the noise.
Follow this link for a transcript of the case and links to the cases dismissed.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Mchael Mulligan (00:27):
Well, it's uh what the background of it is
this.
So back in 2011, uh this fellowwas uh charged with assault
causing bodily harm, or he pledguilty to assault causing bodily
harm.
Um the background of theparticular offense, the he was
on a bus with somebody he hadpreviously had some uh, I guess,
bad dealings with in the past.
They were arguing on the bus,the other bus passenger and he
(00:50):
got off, the other personfollowed him, uh, and the
accused pulled out a jack knifefrom his pocket and stabbed the
person four times in the chest,armpit, and forearm.
Uh happily he survived.
Uh, but that was the basis ofthe original charge.
Uh and ultimately, after somemachinations uh in court, uh he
(01:12):
agreed to plead guilty uh on thebasis that uh the amount of
force he used, if it was forself-defense, was excessive.
Uh and that perhaps was nosurprise given that during the
course of a police interview umhe told the police that while he
believed he was acting inself-defense, he said he could
have stopped after stabbing theperson once, but he had to hold
(01:34):
his ground.
That was his explanation.
Anyways, uh if you're usingforce for self-defense, it's got
to be reasonable.
And uh that comment probablytook it outside that realm.
So he wound up pleading guiltyback in 2011.
Um, and uh his lawyer, who'srepresented by counsel, came to
an agreement with uh Crown, andthere was what's referred to as
(01:54):
a joint submission, where theCrown and the defense agreed in
terms of what sentence should beimposed, and they agreed on an
18-month conditional sentence,like house arrest, basically, uh
where somebody could be let outto go to work or things like
that.
Uh and the man served hissentence uh back in 2011, uh
starting in 2011, uh, and thennothing more happened uh until
(02:17):
uh recently, but in 2022 the uhman realized uh he uh found out
for the very first time that hisfather was indigenous.
Um and uh he uh after learningthat information, he applied
himself for um status, and itlooks like he got that.
Um and that brings us to theinteresting grounds of appeal
(02:41):
here.
Uh the first part of which isuh an application for an
extension of time to appeal.
Because ordinarily, if you wantto appeal, either a conviction
or sentence, you need to do thatwithin 30 days, right?
You can't just wait a decadeand appeal later.
Um and uh so here the manapplied for an extension of time
(03:01):
to appeal uh both his guiltyplea and the sentence that was
imposed, even though he hadserved all of it.
Uh and his argument for doingso um was that uh he had
discovered this fresh evidencein 2022 uh that he was in fact
indigenous, uh and his argumentwas that uh as a result of um
(03:23):
some uh a provision of thecriminal code at seven eighteen
point two, um which says this,I'll just read that to you so
it's aware of that.
718.2 sub E says this.
All available sanctions otherthan imprisonment that are
reasonable in the circumstancesand consistent with the harm
done to victims or the communityshould be considered for all
(03:43):
offenders with particularattention to the circumstances
of aboriginal offenders.
So the criminal code has aspecific provision dealing with
the sentencing of aboriginaloffenders, and that provision
has been considered andinterpreted by various courts,
including the Supreme Court ofCanada in a famous case called
Gladue from 1999, um, thatspeaks about um uh sort of why
(04:08):
that is and how that should beinterpreted.
Um and the the concept there isthat there should be
consideration given to thingslike unique systemic background
and factors that might havebrought an indigenous person to
court, um, and uh the underlyingum uh concern uh that uh
indigenous people are massivelyoverrepresented in the prison
(04:31):
population.
And so that's the rationale forthe um that provision and why
it is that indeed an indigenousperson uh might receive a
different and lower sentencethan somebody who was not
indigenous, uh taking intoaccount their background.
And so this man's argument waswell, look, um had I known that
I was indigenous back in 2011,um his argument was that uh he
(04:55):
could have been treated in acompletely different um fashion.
He suggested that he may nothave chosen to plead guilty, um,
and that the sentence that uhwould have been imposed back in
2011 um could have beendifferent and less than uh what
was indeed uh imposed when theydid not know that he was
indigenous.
Um and so it brings into rathersharp relief the issue of like,
(05:17):
well, how you know how shouldsentences work for somebody
who's indigenous and notindigenous?
That interesting fact patternof somebody not knowing that
they were indigenous.
Uh and in fairness to him aswell, in terms of the argument,
um, there is also some uhauthority for the proposition
that you know where you can havea circumstance where somebody,
for example, is you know notaware of their uh indigenous
(05:40):
background.
If you know somebody thought uhyou know, family thought they
shouldn't tell a child, or forsome reason um thought it was
better not letting them knowthat that can be even a
consideration in terms of sortof loss of cultural identity and
a consideration as well as partof that sentencing process.
And so that's the fact pattern.
Uh and the uh case wound up uhin the uh court of appeal, it
(06:02):
was actually the second layer ofappeal.
Um and the first thing that theuh uh judge had to consider,
the court of appeal, was the thetest for uh an extension of
time to appeal.
Because as they mentionedearlier, you if you want to
appeal, you're supposed to geton with that and give a notice
of a your uh it plan to appealwithin 30 days.
And the list of traditionalthings to be considered there
(06:25):
include did the person have uhan actual intention to appeal
before the 30 days ran out?
You know, like sometimes thathappens and a person's like,
well, they're just in prison andthey can't get to the paper
required to file the thing ordon't have a stamp or something.
You wouldn't want to deprivethem of an appeal if they wanted
to, but couldn't.
Uh, did they inform the crownof their intention to appeal?
That could be a factor, right?
(06:46):
Um was there any prejudice tothe crown as a result of not
doing it in time?
Importantly, is there any meritto the appeal, right?
Uh and then finally, a broadconsideration about whether it's
in the interests of justice toextend the time to file your
notice of appeal.
So that was the that's sort ofthe intellectual legal framework
in which this uh fellow'sapplication was being
(07:06):
considered.
Um and the Court of Appealpointed out here significantly
that um while it is true uh thatthat uh provision of the uh
criminal code uh does requirespecific attention uh to the
circumstances of Aboriginaloffenders uh when uh imposing a
sentence, um the Court of Appealfirst of all pointed out um
(07:29):
that the man did in fact uhreceive a non-custodial
sentence.
It was a house arrest, but hewas not sentenced to an actual
jail sentence at the uh time asin one that would have to be
served in prison based on thisjoint submission that his lawyer
came to.
He was represented by counseluh at the time he entered the uh
(07:50):
guilty plea.
Um and as well, the Court ofAppeal pointed out uh that the
man had not um had prepared whatis referred to as a GLADU
report, which is something namedafter that case that I
mentioned, that sort of seminalSupreme Court of Canada case
about sentencing of indigenousoffenders.
And a GLADDU report issomething which would be
(08:10):
prepared uh that would look atthings like the person's
background or systemic factorsthat might have led to
somebody's offending, forexample.
Like some of the many of thosethings are genuinely tragic when
you read them, right?
You wind up with circumstanceslike you know, somebody who uh
had just great deprivation as achild, or they may have had
fetal alcohol syndrome, or theymay have had uh disrupted home
(08:32):
environment, uh all sorts of uhbackground, which unfortunately
is too common for indigenouspeople.
Uh but he had not provided thatsort of information.
His argument was, look, I'mindigenous, so I should have
received, I didn't know that,and because that wasn't uh
known, uh it meant that I wasn'tsentenced appropriately at the
time.
Um and the court pointed outthat the mere fact of being
(08:55):
indigenous is not uh a basis foran adjustment in sentence.
There has to be some tetheringof that uh to those sort of
legitimate considerations whichare spoken about by the Supreme
Court of Canada in that Gluidoucase, and he hadn't had that
sort of purport uh repaired,prepared, and there's no
information about that.
And the court pointed out that,you know, while this fellow is
(09:16):
uh they described isunderstandably angry that he
wasn't made aware of hisindigenous uh status until his
mid-30s, um, and uh he was uhupset that uh had he known that
earlier, he might have benefitedfrom um societal or financial
supports or other things thatcould have made his life uh
easier during that time period,and he didn't have those things
because he didn't know about hisuh background.
(09:39):
Um, that there was no basishere to conclude that the
sentence that was imposed wasinappropriate, or that the um
fact that the uh neither he norhis lawyer nor the judge who
imposed the conditional sentenceum, you know, they didn't know
about his background.
There's no indication that thesentence is inappropriate, or
given the lack of anyinformation about how his
(10:01):
background impacted him, uh thatit would have had any impact at
the time.
Uh and so as a result of all ofthat, uh the Court of Appeal,
as the BC Supreme Court did,denied his application for an
extension of time uh to uhappeal the sentence that was
imposed, um pointed out that uhthe man is pursuing other
(10:22):
remedies, uh includingapparently a civil action
against his parents and againstvital statistics for some
reason.
It's unexplained in thedecision why it was he didn't
know that his father wasindigenous until he was in his
thirties.
Uh, but apparently the man issuing uh his parents and others
uh uh trying to get some uhcompensation for things that he
(10:43):
might have missed out on uh as aresult of not being aware of
his indigenous status at anearlier time.
So a very interesting, veryrecent case for the BC Court of
Appeal that covers a whole lotof ground there just in terms of
sentencing of indigenousoffenders and how that uh can be
different, um, and also thatissue of, you know, can you come
along uh many years later andask that there be some change uh
(11:05):
to what was imposed when yousomebody finds out later they're
indigenous, and that wasunknown at the time.
So that's the latest from theuh Court of Appeal uh on
Indigenous Offenders andout-of-time uh sentence appeals
and how those relate to that uhprovision uh in the criminal
code seven eighteen uh pointtwo.
Adam Stirling (11:23):
Legally Michael Morgan will continue right after
that.
Michael Morgan is Michael.
Mchael Mulligan (11:42):
Well, this is a Victoria case, uh, and it it's
interesting both for the outcomeand I think also important for
listeners to be generallyfamiliar with this particular
scam so they don't wind up in asimilar position.
And the background here um isthat a woman uh in Victoria uh
described in the judgment hereas befriended someone she cannot
(12:03):
was befriended by someone shecannot name, probably online if
you have to guess that.
Um and this uh new friend uhpersuaded her to initially
invest money in cryptocurrency.
Uh in this case it was acryptocurrency called Ethereum,
through a competitor forBitcoin.
Um and originally she provideduh to this friend uh relatively
(12:26):
small amounts of money, but uhfive hundred dollars and a
thousand dollars, and the newmysterious friend returned the
money, the cryptocurrency, alongwith generous returns, which
caused her to have trust in thisperson.
Um and she got returns thatamounted to one percent per day,
so a very substantial returnwhen you add that up.
(12:48):
As the judge pointed out rightat the beginning of her
judgment, she said, if aninvestment proposal sounds too
good to be true, it probably is.
And so the friend, having uhbuilt up trust in that way, uh
then uh uh the uh persuaded theuh woman to uh take out further
money and deposit it into the acryptocurrency exchange, which
(13:11):
is like a company that doescryptocurrency transfers and so
on.
And that's the entity whichultimately is getting sued in
this case.
Um and that cryptocurrency sortof exchange company, um, she
the woman eventually deposited atotal of six hundred and
seventy-one thousand dollarsinto that, money which she
raised by remortgaging her homeand borrowing money from a
(13:34):
friend and put all of this moneyinto this uh cryptocurrency uh
account, um, and then uhproceeded to uh uh uh try to
transfer the money to this uhwallet of the mysterious friend
she'd made who was giving thesegreat returns on the smaller
amounts of money.
Now, this then brings us to theissue of who can be responsible
(13:57):
for what everyone can tell iscoming in this case, right?
Um is there any obligation onlike the cryptocurrency exchange
company, right, uh to stop thiskind of fraud?
Um and there is a legal testfor that, and it's born out of
the general principle of theidea of negligence, right?
(14:18):
Um and in order to succeed, ifyou're suing something like a
bank or a cryptocurrencyexchange for negligence, you
need to, the plaintiff needs toestablish a number of things.
They've got to show that uhthat person that you're suing or
entity owed you a duty of care.
You have to show that the uhconduct of the person you're
suing fell below the standard uhstandard of care for somebody
(14:41):
who does owe you a duty of care,so is that concept of standard
of care and duty of care?
You then have to show that yousustained damages and that the
damages were caused by thedefendant's breach of their
duty.
That's the broad, those are thebroad principles.
And for financial institutions,uh that those things are uh and
for example, like if you'resuing a bank, the the standard
(15:02):
there would be did the bankerexercise a standard of care of a
reasonable banker, right?
So it doesn't requireperfection, but there has to be
sort of reasonable care taken byuh an entity like that.
And there are cases that dostand for that proposition,
right?
Like a bank owes its customersa duty to exercise reasonable
care and skill, dischargingtheir obligations to their
(15:23):
customers, right?
Uh and there's also law in BCthat suggests that uh where a
like a bank or another financialinstitution would cover these
kind of currency exchanges, um,where they have uh where they uh
are aware of unusualcircumstances, like um money
being transferred in a waythat's sort of out of accordance
(15:44):
with the kind of account orpurpose the person in an account
for, or you know, the amount ofmoney being transferred was you
know very large in somecontexts, right?
Or there was something oddabout uh the uh conduct of the
transaction, or the bank hadknowledge of similar scams uh
targeting similar demographics.
There can be circumstanceswhere a financial institution
(16:05):
does owe a duty of care, and ifthey fell below the standard of
a reasonable banker orcryptocurrency exchange, there
could be liability there.
So that's what she was arguing,is well, this is the fault of
this uh currency cryptocurrencyexchange.
They should not have uh allowedthe allowed her to ultimately
transfer the six hundredseventy-one thousand dollars to
(16:27):
her new mysterious friend's uhcryptocurrency account.
But here there was uh a veryconsiderable amount of evidence
about efforts the cryptocurrencyexchange made, much to their
credit, I've got to say, uh, totry to stop her from doing this.
First of all, thecryptocurrency exchange complied
with all like the FinTrackrequirements for financial
(16:49):
tracking of uh proceeds ofcrime, that kind of thing.
Adam Stirling (16:52):
Yes.
Mchael Mulligan (16:53):
Uh and before they even allowed her to sign
up, they sent a general warningto her and anyone else who's
signing up, telling them don'tsend cryptocurrency to untrusted
wallets can result in permanentloss of funds, warning people
in a general way aboutcryptocurrency scams and you
know, uh don't respond tounsolicited messages and so on.
Uh and she acknowledged sheread all of that and clicked,
(17:14):
you know, I accept.
Fair enough, right?
I guess every uh agreement, uhanything you sign up for these
days will have a bunch ofwarnings.
But not just that.
When she went to do something,a secondary written warning was
sent to her, telling her thatyou know, if you transfer funds
in this way it's irreversibleand the exchange is not liable
for your losses, and she gotthat as well.
Furthermore, when she tried totransfer all this money, uh a
(17:36):
diligent employee at thecryptocurrency exchange took the
time to call her and warned herthat she is likely being
scammed and she should notproceed with the transaction.
So an actual human call tellingher, Don't do this, um, which
was recorded.
Uh uh, there's then a follow-upcall from a supervisor telling
her again, don't do this.
(17:58):
It looks like a scam.
Uh and that one was recorded.
The woman said agreed that thatwas her voice, but claimed
somehow that it wasn't acomplete recording, although she
couldn't recall what wasmissing from it.
Then uh the woman, in responseto this third this extra call
from the supervisor telling her,don't do this.
Um, she told the supervisor inthe recording she knew what she
(18:20):
was doing, no one could controlher, uh, and that she'd been
trading for over twenty years,she understood the risks of
trading cryptocurrency, uh, andthen she threatened to sue the
cryptocurrency exchange if theydidn't complete the transaction
promptly.
Uh she did that in writing.
Okay.
Yeah.
You know, both in the call andthen uh follow up multiple email
(18:41):
messages uh threatening to sueif they didn't hurry up and
complete this transaction.
And so eventually, despitetheir various efforts to tell
her don't do this, um, sheinsisted.
Uh and upon being threatenedand told repeatedly in writing
and personally, they did it.
The cryptocurrency exchange didwhat she demanded they do.
(19:01):
Uh and so the cryptocurrencyexchange sent the six hundred
and seventy, whatever it was,thousand dollars or mortgage
money and money from the friendoff to the uh cryptocurrency
wallet of the unknown per friendthat she'd met, and that was
gone.
Um and so as a result of all ofthat, you know, well the judge
said, yes, there is a duty ofcare owed here.
(19:22):
Certainly what thecryptocurrency exchange this in
that did in this case met the uhstandard of care of a
reasonable cryptocurrencyexchange, telling her
repeatedly, stop, stop, stop,this is a likely scam, it's a
likely scam.
She argued that they shouldhave been even clearer telling
you, telling her that they knewthis was a scam was account was
a scam.
(19:43):
Uh but uh again, thecryptocurrency exchange, they
actually had in place uh uh somesort of a technical program to
try to determine whether therisk associated with different
cryptocurrency accounts mightbe.
So they're obviously doing somethings here.
Yeah.
Uh and that particular walletshe was trying to transfer the
money to had a score that didn'tindicate it had previously been
(20:03):
flagged for fraudulentactivity.
And that wasn't challenged.
And so the cryptocurrencyexchange position at this trial,
and judge accepted, was theyjust they didn't know that this
was a scam.
They didn't know that accountis a scam account, but all signs
were pointing to that, andthat's why they kept telling her
stop, stop, stop, uh, and shewouldn't listen.
(20:23):
Um, and so even though therewas a duty of care, uh they met
it here.
It looks like in spades withall these efforts to tell her to
stop.
Um, and so the uh the claim wasdismissed, not surprisingly, I
don't think, on that factpattern, and now there's been
costs awarded against her forhaving unsuccessfully sued the
cryptocurrency exchange.
So there's several importantthings in wrapped up in all
(20:46):
that.
There can be a duty of care,right?
Obviously, this company wasdoing its best to try to stop
her, but it's also an example ofsomebody who, you know, you
start getting dollar signs inyour eyes because you saw, look
at getting 1% every day, andlook, they gave me this money
back at the beginning.
Somebody would be just very,very tempting to try to continue
uh with that.
And as the judge said, if aninvestment proposal sounds too
(21:08):
good to be true, it probably is.
And so uh this isn't going tobe an isolated thing.
As they said, this is aVictoria case.
And so uh if you're contactedwith this kind of an investment
opportunity by somebody, even ifyou think, oh, look, they've uh
come through uh with theseamounts I've previously
provided, that does not mean uhthat eventually once they've uh
(21:29):
hooked you, uh you're going toget your money back with the big
promised uh returns.
So very terrible story.
She'll be left with a bigmortgage on her home and money
to her friend, but it's not thecryptocurrency exchange's fault.
And so when you do thesethings, don't assume there's
going to be somebody there tocatch you.
So that's the latest oncryptocurrency scans right here
in Victoria.
Adam Stirling (21:47):
Michael Mulligan with Mulligan Advanced Lawyers.
Thanks so much.
Always great to be here.
All right, quick break.
News is next.
Well, it's uh what the background of it is
this.
So back in 2011, uh this fellowwas uh charged with assault
causing bodily harm, or he pledguilty to assault causing bodily
harm.
Um the background of theparticular offense, the he was
on a bus with somebody he hadpreviously had some uh, I guess,
bad dealings with in the past.
They were arguing on the bus,the other bus passenger and he
(00:50):
got off, the other personfollowed him, uh, and the
accused pulled out a jack knifefrom his pocket and stabbed the
person four times in the chest,armpit, and forearm.
Uh happily he survived.
Uh, but that was the basis ofthe original charge.
Uh and ultimately, after somemachinations uh in court, uh he
(01:12):
agreed to plead guilty uh on thebasis that uh the amount of
force he used, if it was forself-defense, was excessive.
Uh and that perhaps was nosurprise given that during the
course of a police interview umhe told the police that while he
believed he was acting inself-defense, he said he could
have stopped after stabbing theperson once, but he had to hold
(01:34):
his ground.
That was his explanation.
Anyways, uh if you're usingforce for self-defense, it's got
to be reasonable.
And uh that comment probablytook it outside that realm.
So he wound up pleading guiltyback in 2011.
Um, and uh his lawyer, who'srepresented by counsel, came to
an agreement with uh Crown, andthere was what's referred to as
(01:54):
a joint submission, where theCrown and the defense agreed in
terms of what sentence should beimposed, and they agreed on an
18-month conditional sentence,like house arrest, basically, uh
where somebody could be let outto go to work or things like
that.
Uh and the man served hissentence uh back in 2011, uh
starting in 2011, uh, and thennothing more happened uh until
(02:17):
uh recently, but in 2022 the uhman realized uh he uh found out
for the very first time that hisfather was indigenous.
Um and uh he uh after learningthat information, he applied
himself for um status, and itlooks like he got that.
Um and that brings us to theinteresting grounds of appeal
(02:41):
here.
Uh the first part of which isuh an application for an
extension of time to appeal.
Because ordinarily, if you wantto appeal, either a conviction
or sentence, you need to do thatwithin 30 days, right?
You can't just wait a decadeand appeal later.
Um and uh so here the manapplied for an extension of time
(03:01):
to appeal uh both his guiltyplea and the sentence that was
imposed, even though he hadserved all of it.
Uh and his argument for doingso um was that uh he had
discovered this fresh evidencein 2022 uh that he was in fact
indigenous, uh and his argumentwas that uh as a result of um
(03:23):
some uh a provision of thecriminal code at seven eighteen
point two, um which says this,I'll just read that to you so
it's aware of that.
718.2 sub E says this.
All available sanctions otherthan imprisonment that are
reasonable in the circumstancesand consistent with the harm
done to victims or the communityshould be considered for all
(03:43):
offenders with particularattention to the circumstances
of aboriginal offenders.
So the criminal code has aspecific provision dealing with
the sentencing of aboriginaloffenders, and that provision
has been considered andinterpreted by various courts,
including the Supreme Court ofCanada in a famous case called
Gladue from 1999, um, thatspeaks about um uh sort of why
(04:08):
that is and how that should beinterpreted.
Um and the the concept there isthat there should be
consideration given to thingslike unique systemic background
and factors that might havebrought an indigenous person to
court, um, and uh the underlyingum uh concern uh that uh
indigenous people are massivelyoverrepresented in the prison
(04:31):
population.
And so that's the rationale forthe um that provision and why
it is that indeed an indigenousperson uh might receive a
different and lower sentencethan somebody who was not
indigenous, uh taking intoaccount their background.
And so this man's argument waswell, look, um had I known that
I was indigenous back in 2011,um his argument was that uh he
(04:55):
could have been treated in acompletely different um fashion.
He suggested that he may nothave chosen to plead guilty, um,
and that the sentence that uhwould have been imposed back in
2011 um could have beendifferent and less than uh what
was indeed uh imposed when theydid not know that he was
indigenous.
Um and so it brings into rathersharp relief the issue of like,
(05:17):
well, how you know how shouldsentences work for somebody
who's indigenous and notindigenous?
That interesting fact patternof somebody not knowing that
they were indigenous.
Uh and in fairness to him aswell, in terms of the argument,
um, there is also some uhauthority for the proposition
that you know where you can havea circumstance where somebody,
for example, is you know notaware of their uh indigenous
(05:40):
background.
If you know somebody thought uhyou know, family thought they
shouldn't tell a child, or forsome reason um thought it was
better not letting them knowthat that can be even a
consideration in terms of sortof loss of cultural identity and
a consideration as well as partof that sentencing process.
And so that's the fact pattern.
Uh and the uh case wound up uhin the uh court of appeal, it
(06:02):
was actually the second layer ofappeal.
Um and the first thing that theuh uh judge had to consider,
the court of appeal, was the thetest for uh an extension of
time to appeal.
Because as they mentionedearlier, you if you want to
appeal, you're supposed to geton with that and give a notice
of a your uh it plan to appealwithin 30 days.
And the list of traditionalthings to be considered there
(06:25):
include did the person have uhan actual intention to appeal
before the 30 days ran out?
You know, like sometimes thathappens and a person's like,
well, they're just in prison andthey can't get to the paper
required to file the thing ordon't have a stamp or something.
You wouldn't want to deprivethem of an appeal if they wanted
to, but couldn't.
Uh, did they inform the crownof their intention to appeal?
That could be a factor, right?
(06:46):
Um was there any prejudice tothe crown as a result of not
doing it in time?
Importantly, is there any meritto the appeal, right?
Uh and then finally, a broadconsideration about whether it's
in the interests of justice toextend the time to file your
notice of appeal.
So that was the that's sort ofthe intellectual legal framework
in which this uh fellow'sapplication was being
(07:06):
considered.
Um and the Court of Appealpointed out here significantly
that um while it is true uh thatthat uh provision of the uh
criminal code uh does requirespecific attention uh to the
circumstances of Aboriginaloffenders uh when uh imposing a
sentence, um the Court of Appealfirst of all pointed out um
(07:29):
that the man did in fact uhreceive a non-custodial
sentence.
It was a house arrest, but hewas not sentenced to an actual
jail sentence at the uh time asin one that would have to be
served in prison based on thisjoint submission that his lawyer
came to.
He was represented by counseluh at the time he entered the uh
(07:50):
guilty plea.
Um and as well, the Court ofAppeal pointed out uh that the
man had not um had prepared whatis referred to as a GLADU
report, which is something namedafter that case that I
mentioned, that sort of seminalSupreme Court of Canada case
about sentencing of indigenousoffenders.
And a GLADDU report issomething which would be
(08:10):
prepared uh that would look atthings like the person's
background or systemic factorsthat might have led to
somebody's offending, forexample.
Like some of the many of thosethings are genuinely tragic when
you read them, right?
You wind up with circumstanceslike you know, somebody who uh
had just great deprivation as achild, or they may have had
fetal alcohol syndrome, or theymay have had uh disrupted home
(08:32):
environment, uh all sorts of uhbackground, which unfortunately
is too common for indigenouspeople.
Uh but he had not provided thatsort of information.
His argument was, look, I'mindigenous, so I should have
received, I didn't know that,and because that wasn't uh
known, uh it meant that I wasn'tsentenced appropriately at the
time.
Um and the court pointed outthat the mere fact of being
(08:55):
indigenous is not uh a basis foran adjustment in sentence.
There has to be some tetheringof that uh to those sort of
legitimate considerations whichare spoken about by the Supreme
Court of Canada in that Gluidoucase, and he hadn't had that
sort of purport uh repaired,prepared, and there's no
information about that.
And the court pointed out that,you know, while this fellow is
(09:16):
uh they described isunderstandably angry that he
wasn't made aware of hisindigenous uh status until his
mid-30s, um, and uh he was uhupset that uh had he known that
earlier, he might have benefitedfrom um societal or financial
supports or other things thatcould have made his life uh
easier during that time period,and he didn't have those things
because he didn't know about hisuh background.
(09:39):
Um, that there was no basishere to conclude that the
sentence that was imposed wasinappropriate, or that the um
fact that the uh neither he norhis lawyer nor the judge who
imposed the conditional sentenceum, you know, they didn't know
about his background.
There's no indication that thesentence is inappropriate, or
given the lack of anyinformation about how his
(10:01):
background impacted him, uh thatit would have had any impact at
the time.
Uh and so as a result of all ofthat, uh the Court of Appeal,
as the BC Supreme Court did,denied his application for an
extension of time uh to uhappeal the sentence that was
imposed, um pointed out that uhthe man is pursuing other
(10:22):
remedies, uh includingapparently a civil action
against his parents and againstvital statistics for some
reason.
It's unexplained in thedecision why it was he didn't
know that his father wasindigenous until he was in his
thirties.
Uh, but apparently the man issuing uh his parents and others
uh uh trying to get some uhcompensation for things that he
(10:43):
might have missed out on uh as aresult of not being aware of
his indigenous status at anearlier time.
So a very interesting, veryrecent case for the BC Court of
Appeal that covers a whole lotof ground there just in terms of
sentencing of indigenousoffenders and how that uh can be
different, um, and also thatissue of, you know, can you come
along uh many years later andask that there be some change uh
(11:05):
to what was imposed when yousomebody finds out later they're
indigenous, and that wasunknown at the time.
So that's the latest from theuh Court of Appeal uh on
Indigenous Offenders andout-of-time uh sentence appeals
and how those relate to that uhprovision uh in the criminal
code seven eighteen uh pointtwo.
Adam Stirling (11:23):
Legally Michael Morgan will continue right after
that.
Michael Morgan is Michael.
Mchael Mulligan (11:42):
Well, this is a Victoria case, uh, and it it's
interesting both for the outcomeand I think also important for
listeners to be generallyfamiliar with this particular
scam so they don't wind up in asimilar position.
And the background here um isthat a woman uh in Victoria uh
described in the judgment hereas befriended someone she cannot
(12:03):
was befriended by someone shecannot name, probably online if
you have to guess that.
Um and this uh new friend uhpersuaded her to initially
invest money in cryptocurrency.
Uh in this case it was acryptocurrency called Ethereum,
through a competitor forBitcoin.
Um and originally she provideduh to this friend uh relatively
(12:26):
small amounts of money, but uhfive hundred dollars and a
thousand dollars, and the newmysterious friend returned the
money, the cryptocurrency, alongwith generous returns, which
caused her to have trust in thisperson.
Um and she got returns thatamounted to one percent per day,
so a very substantial returnwhen you add that up.
(12:48):
As the judge pointed out rightat the beginning of her
judgment, she said, if aninvestment proposal sounds too
good to be true, it probably is.
And so the friend, having uhbuilt up trust in that way, uh
then uh uh the uh persuaded theuh woman to uh take out further
money and deposit it into the acryptocurrency exchange, which
(13:11):
is like a company that doescryptocurrency transfers and so
on.
And that's the entity whichultimately is getting sued in
this case.
Um and that cryptocurrency sortof exchange company, um, she
the woman eventually deposited atotal of six hundred and
seventy-one thousand dollarsinto that, money which she
raised by remortgaging her homeand borrowing money from a
(13:34):
friend and put all of this moneyinto this uh cryptocurrency uh
account, um, and then uhproceeded to uh uh uh try to
transfer the money to this uhwallet of the mysterious friend
she'd made who was giving thesegreat returns on the smaller
amounts of money.
Now, this then brings us to theissue of who can be responsible
(13:57):
for what everyone can tell iscoming in this case, right?
Um is there any obligation onlike the cryptocurrency exchange
company, right, uh to stop thiskind of fraud?
Um and there is a legal testfor that, and it's born out of
the general principle of theidea of negligence, right?
(14:18):
Um and in order to succeed, ifyou're suing something like a
bank or a cryptocurrencyexchange for negligence, you
need to, the plaintiff needs toestablish a number of things.
They've got to show that uhthat person that you're suing or
entity owed you a duty of care.
You have to show that the uhconduct of the person you're
suing fell below the standard uhstandard of care for somebody
(14:41):
who does owe you a duty of care,so is that concept of standard
of care and duty of care?
You then have to show that yousustained damages and that the
damages were caused by thedefendant's breach of their
duty.
That's the broad, those are thebroad principles.
And for financial institutions,uh that those things are uh and
for example, like if you'resuing a bank, the the standard
(15:02):
there would be did the bankerexercise a standard of care of a
reasonable banker, right?
So it doesn't requireperfection, but there has to be
sort of reasonable care taken byuh an entity like that.
And there are cases that dostand for that proposition,
right?
Like a bank owes its customersa duty to exercise reasonable
care and skill, dischargingtheir obligations to their
(15:23):
customers, right?
Uh and there's also law in BCthat suggests that uh where a
like a bank or another financialinstitution would cover these
kind of currency exchanges, um,where they have uh where they uh
are aware of unusualcircumstances, like um money
being transferred in a waythat's sort of out of accordance
(15:44):
with the kind of account orpurpose the person in an account
for, or you know, the amount ofmoney being transferred was you
know very large in somecontexts, right?
Or there was something oddabout uh the uh conduct of the
transaction, or the bank hadknowledge of similar scams uh
targeting similar demographics.
There can be circumstanceswhere a financial institution
(16:05):
does owe a duty of care, and ifthey fell below the standard of
a reasonable banker orcryptocurrency exchange, there
could be liability there.
So that's what she was arguing,is well, this is the fault of
this uh currency cryptocurrencyexchange.
They should not have uh allowedthe allowed her to ultimately
transfer the six hundredseventy-one thousand dollars to
(16:27):
her new mysterious friend's uhcryptocurrency account.
But here there was uh a veryconsiderable amount of evidence
about efforts the cryptocurrencyexchange made, much to their
credit, I've got to say, uh, totry to stop her from doing this.
First of all, thecryptocurrency exchange complied
with all like the FinTrackrequirements for financial
(16:49):
tracking of uh proceeds ofcrime, that kind of thing.
Adam Stirling (16:52):
Yes.
Mchael Mulligan (16:53):
Uh and before they even allowed her to sign
up, they sent a general warningto her and anyone else who's
signing up, telling them don'tsend cryptocurrency to untrusted
wallets can result in permanentloss of funds, warning people
in a general way aboutcryptocurrency scams and you
know, uh don't respond tounsolicited messages and so on.
Uh and she acknowledged sheread all of that and clicked,
(17:14):
you know, I accept.
Fair enough, right?
I guess every uh agreement, uhanything you sign up for these
days will have a bunch ofwarnings.
But not just that.
When she went to do something,a secondary written warning was
sent to her, telling her thatyou know, if you transfer funds
in this way it's irreversibleand the exchange is not liable
for your losses, and she gotthat as well.
Furthermore, when she tried totransfer all this money, uh a
(17:36):
diligent employee at thecryptocurrency exchange took the
time to call her and warned herthat she is likely being
scammed and she should notproceed with the transaction.
So an actual human call tellingher, Don't do this, um, which
was recorded.
Uh uh, there's then a follow-upcall from a supervisor telling
her again, don't do this.
(17:58):
It looks like a scam.
Uh and that one was recorded.
The woman said agreed that thatwas her voice, but claimed
somehow that it wasn't acomplete recording, although she
couldn't recall what wasmissing from it.
Then uh the woman, in responseto this third this extra call
from the supervisor telling her,don't do this.
Um, she told the supervisor inthe recording she knew what she
(18:20):
was doing, no one could controlher, uh, and that she'd been
trading for over twenty years,she understood the risks of
trading cryptocurrency, uh, andthen she threatened to sue the
cryptocurrency exchange if theydidn't complete the transaction
promptly.
Uh she did that in writing.
Okay.
Yeah.
You know, both in the call andthen uh follow up multiple email
(18:41):
messages uh threatening to sueif they didn't hurry up and
complete this transaction.
And so eventually, despitetheir various efforts to tell
her don't do this, um, sheinsisted.
Uh and upon being threatenedand told repeatedly in writing
and personally, they did it.
The cryptocurrency exchange didwhat she demanded they do.
(19:01):
Uh and so the cryptocurrencyexchange sent the six hundred
and seventy, whatever it was,thousand dollars or mortgage
money and money from the friendoff to the uh cryptocurrency
wallet of the unknown per friendthat she'd met, and that was
gone.
Um and so as a result of all ofthat, you know, well the judge
said, yes, there is a duty ofcare owed here.
(19:22):
Certainly what thecryptocurrency exchange this in
that did in this case met the uhstandard of care of a
reasonable cryptocurrencyexchange, telling her
repeatedly, stop, stop, stop,this is a likely scam, it's a
likely scam.
She argued that they shouldhave been even clearer telling
you, telling her that they knewthis was a scam was account was
a scam.
(19:43):
Uh but uh again, thecryptocurrency exchange, they
actually had in place uh uh somesort of a technical program to
try to determine whether therisk associated with different
cryptocurrency accounts mightbe.
So they're obviously doing somethings here.
Yeah.
Uh and that particular walletshe was trying to transfer the
money to had a score that didn'tindicate it had previously been
(20:03):
flagged for fraudulentactivity.
And that wasn't challenged.
And so the cryptocurrencyexchange position at this trial,
and judge accepted, was theyjust they didn't know that this
was a scam.
They didn't know that accountis a scam account, but all signs
were pointing to that, andthat's why they kept telling her
stop, stop, stop, uh, and shewouldn't listen.
(20:23):
Um, and so even though therewas a duty of care, uh they met
it here.
It looks like in spades withall these efforts to tell her to
stop.
Um, and so the uh the claim wasdismissed, not surprisingly, I
don't think, on that factpattern, and now there's been
costs awarded against her forhaving unsuccessfully sued the
cryptocurrency exchange.
So there's several importantthings in wrapped up in all
(20:46):
that.
There can be a duty of care,right?
Obviously, this company wasdoing its best to try to stop
her, but it's also an example ofsomebody who, you know, you
start getting dollar signs inyour eyes because you saw, look
at getting 1% every day, andlook, they gave me this money
back at the beginning.
Somebody would be just very,very tempting to try to continue
uh with that.
And as the judge said, if aninvestment proposal sounds too
(21:08):
good to be true, it probably is.
And so uh this isn't going tobe an isolated thing.
As they said, this is aVictoria case.
And so uh if you're contactedwith this kind of an investment
opportunity by somebody, even ifyou think, oh, look, they've uh
come through uh with theseamounts I've previously
provided, that does not mean uhthat eventually once they've uh
(21:29):
hooked you, uh you're going toget your money back with the big
promised uh returns.
So very terrible story.
She'll be left with a bigmortgage on her home and money
to her friend, but it's not thecryptocurrency exchange's fault.
And so when you do thesethings, don't assume there's
going to be somebody there tocatch you.
So that's the latest oncryptocurrency scans right here
in Victoria.
Adam Stirling (21:47):
Michael Mulligan with Mulligan Advanced Lawyers.
Thanks so much.
Always great to be here.
All right, quick break.
News is next.
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