November 7, 2025 • 21 mins
A 20-year online feud that began on a community website ended with a meticulously planned attack inside a BC courtroom—red clothes to hide blood, a packed suitcase, a knife and a hammer, and alcohol for courage. We walk through how the trial judge weighed mental health evidence against extensive planning, why the NCRMD standard remains a high bar, and how appellate courts defer to sentencing judges unless there’s a clear error. You’ll hear exactly why a 12-year sentence held firm despite arguments for reduced moral culpability.
Then we pivot to a case that could change how your parcels land at your door. Consumer Protection BC ruled that “delivered to the consumer” means more than GPS at your address and a hand-off to an unknown person. When a buyer never saw his $500‑plus item, Amazon leaned on coordinates and history; the regulator leaned on the statute. The result: a full refund, legal costs, and a $10,000 penalty. We break down distance sales contracts, the 30‑day delivery rule, and why terms of service can’t erase statutory rights. For shoppers, this means real recourse when packages vanish. For sellers, it means building proof that the consumer actually received the goods—think signatures, verified IDs, or explicit consent for alternative delivery methods.
Along the way, we highlight the role of courthouse sheriffs in preventing tragedy, the practical meaning of mitigation at sentencing, and the evidence standards that separate suspicion from proof in both criminal and consumer contexts. If you care about justice, safety, and what “delivered” really means, this conversation will sharpen your understanding and give you steps you can use today.
If you found this useful, follow the show, share it with a friend, and leave a quick review so more listeners can find it. What’s your take: should high‑value deliveries always require a signature?
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 (00:09):
Good afternoon, Michael.
How are we doing?
Hey, good afternoon.
I'm doing great.
Dismissed.
Now, does the dismissed applyto the in a courtroom or or what
happened here?
Michael Mulligan (00:29):
Oh no.
So this was this was a uh womanwho was convicted uh not that
long ago of attempted murder,and the attempted murder
occurred literally in acourtroom in BC.
Wow.
And the background of theattempted murder in the
courtroom, it started all theway back in 2005.
Uh and the people involved, theaccused and the person who was
(00:52):
uh uh survived the murderattempt, uh met online on a
website described by the Courtof Appeal as one designed to
help the Chinese immigrimmigrant community connect in
Canada.
Uh and certainly the websitesucceeded in connecting these
two people, uh, but not in apositive way.
Um the uh both the uh accuseduh uh appellant, I guess, uh,
(01:15):
and the victim of the uh attackuh after meeting on this website
commenced a what was describedas an intense online feud uh
which went on for years, uh,which resulted in both of them
posting repeatedly insulting andpersonal attacks on one
another, uh, that eventually in2016 resulted in one of the
(01:37):
people, the person who was uh uhsurvived the attack in the
courtroom, suing the other womanfor defamation.
And then that personcountersued.
So they sued each other fordefamation, things that they
were posting online.
They both succeeded.
They both were found to haveengaged in uh defamatory conduct
(01:58):
online.
One of them was awarded $9,000,and the other person was
awarded $8,500.
So, you know, the net result$500.
But uh the accused in thiscase, the appellant, uh, was
also found guilty of uh contemptuh for continuing to post
things online during the courseof those proceedings, uh, and so
(02:20):
there was an award of twothousand dollars for that.
So I guess it's twenty fivehundred bucks after all of that.
Well, it didn't end there.
Uh the uh person who waseventually survived the attack
uh brought another applicationuh for uh contempt uh again uh
against the accused, uh, andthen the accused requested an
(02:41):
in-person hearing uh in on uhMay 25th, 2021.
Uh and it was at that courtappearance both women showed up
for this court appearance, umand the uh appellant accused at
the time uh was uh uh veryunfortunate.
She obviously took a uh numberof steps in preparing for what
(03:02):
happened there.
Uh she'd armed herself with aknife and hammer before coming
to court, she drank alcohol tobolster her courage.
Uh she brought a suitcaseeither to take to jail or flee
the attack, unclear which, uh,and dressed in all red to
disguise the bloodstains.
So that's not a good thing.
Uh and then the uh accused uhor the appellant waited uh in
(03:24):
the courtroom, and before thejudge appeared in the courtroom,
uh she attacked the other womanfrom behind, pummeling her with
a hammer and stabbing her uhwith a knife repeatedly, and she
inflicted at least ten stab andhammer blows before fortunately
a sheriff entered the courtroomand likely saved the life of
the woman who was beingattacked.
That's the factual background.
Adam Stirling (03:45):
Wow.
Michael Mulligan (03:45):
Uh, you don't see that every day.
And I must admit, comment onthe sheriff thing.
We're very fortunate to havesheriffs at the uh courthouses.
They're they're independent ofthe police, and the concept
there is you know, the policeare often witnesses in cases,
right?
And you don't want to have acircumstance where a judge is
being protected by the personwho's a witness in the case,
right?
That's going to give perhapsthe wrong impression.
And so we have sheriffs areindependent from the police, and
(04:07):
their task is security at thecourthouse.
Now, usually in BC, we'rereasonably safe, right?
There are in criminal casesthere would be a sheriff in
every courtroom that's insession, right?
And in some family and civilcases, there are also sheriffs
available where there's a highsecurity concern, like right now
at the Victoria Courthouse, umthere's a uh trial going on
(04:29):
involving alleged gang activityand informant and uh you know
this kind of thing.
And so, for example, they'vesealed off all but the main
entrance, and they've gotsheriffs there with a metal
detector scanning everyonecoming in and out so that
nobody's bringing a gun or knifeor hammer in, hopefully.
Um usually it's not that, uh,but uh where necessary the
sheriffs will do that sort ofprotection as well for the whole
(04:50):
courthouse.
So at this woman's trial, andshe had a trial, the the primary
issue uh was whether her mentalstate uh and she had uh alleged
that she was not criminallyresponsible as a result of a
mental disorder.
Now, in Canada, that's a fairlyhigh bar, right?
You you need to establish uh,you know, essentially that you
(05:11):
were had a disease of the mind,like a mental disorder, and they
rendered you incapable ofappreciating the natures of your
actions or knowing that it waswrong.
It's a very high threshold,right?
Um and while there was someevidence that this person had,
woman, maybe as evidenced by theuh knife and hammer attack in
the courtroom, some mentalhealth problems, including uh
(05:32):
depression, anxiety, and whatwas described as a mild alcohol
use disorder.
Remembering she also drank tobuild up courage before coming
in to commit this attack.
Uh ultimately at the trial, thejudge concluded no, she wasn't
N CRMD.
They accepted the doctor'sopinion, it just wasn't it
wasn't there, right?
Uh and by the way, you youdon't get there if you just get
(05:52):
yourself really drunk, right?
That's not going to get you toN CRMD.
Anyways, she was convicted ofthe attempted murder and
sentenced to uh a total oftwelve years.
Uh her counsel had suggestedthat the sentence should have
been lower, uh six years or so,arguing that uh the alcohol use
and mental illnesses which shedid have, although not to the
(06:13):
height of NCRMD, should havebeen mitigating.
And there is some authority forthat.
And the idea there is that, youknow, let's say somebody has a
serious mental illness thatcontributed to what they did,
but it didn't get to that highthreshold of NCRMD, right?
You can have a middle groundwhere you're still capable of
being criminally responsible forwhat you've done, but let's say
(06:34):
you had a mental illness whichcontributed to the offense or
why the person committed theoffense.
And the way courts have lookedat that, at least some courts in
the past, is that that can,even if it's not NCRMD, can
amount to what's referred to asa mitigating factor on
sentencing, right?
Um and so the argument here onthe appeal was that the trial
(06:57):
judge, uh having rejected theNCRMD, but did accept the you
know the evidence from the uhthe doctor who testified uh
there, every everyone seemed toaccept it, uh, that this woman
did have these various mental uhconditions, uh, which uh you
know maybe that helps explainwhy she got into this 20-year
feud, which apparently was twoways, right?
(07:18):
Both of these people wereengaged in that conduct.
Adam Stirling (07:20):
Yeah.
Michael Mulligan (07:21):
Um and so the argument was, well, hey, my the
moral culpability should havebeen lower, and the sentencing
judge um, you know, should havereduced the sentence to take
those things more into account,uh and so should have given a
sentence of less than uh twelveyears.
And the Court of Appeal indealing with that fact pattern
agreed with all of those things.
Yes, that you know, you canhave a circumstance where
(07:42):
there's reduced moralculpability as a result of a
mental disorder, right?
Even if it's not in CRMD.
But they they pointed out, forexample, in this case, right,
some of those things I mentionedat the outset.
Like this woman had clearlyplanned this attack in advance
to the point of packing asuitcase and putting on the red
clothing to cover up bloodstainsand you know, drinking to get
her courage up and armingherself and ask perhaps asking
(08:04):
for the in-person hearingaltogether, right?
Back in twenty twenty-one, thatwould many of these things
would have been you know online,right?
Yeah.
So she wanted this in-personhearing, maybe part of this
plan.
Adam Stirling (08:14):
Yeah.
Michael Mulligan (08:15):
And so the Court of Appeal, this is another
important thing to know on thesentence appeals, you know, the
Court of Appeal will lay outthose kind of principles and so
on.
Uh, but there's a high degreeof difference in the Court of
Appeal to decisions that trialjudges have made.
And so the Court of Appeal herepointed out that, you know,
while a judge could haveconcluded on this evidence about
(08:37):
the depression and so on, uh,that those things could have
reduced the moral culpability ofthis woman.
The judge wasn't required to dothat.
And the idea there is that thetrial judge is going to be in
the best position to make someof those kind of factual
findings and judgments, right?
They've heard from directly theexpert, you know, they've heard
the evidence at the trial,exactly what went on there.
(09:00):
And so the the Court of Appealwon't usually get in and sort of
tinker, even if the judge couldhave come to some different
decision, and even if the Courtof Appeal judges might say,
well, I might have come to adifferent decision if I were the
trial judge, that's not goingto do it, right?
You'd have to show that, look,there was just some error, for
example, the judge made.
Like, for example, had thesentencing judge said, you know,
(09:22):
I cannot take these things intoaccount when deciding whether
uh there's reduced moralculpability, that would have
been an example of, well, that'sjust incorrect.
You you could, right?
But if that could doesn't meanyou must.
Uh, and so on that basis, theuh Court of Appeal has uh, while
granting leave to appeal,dismissed the sentence appeal.
Um, and this woman will have toserve her uh twelve-year uh
(09:44):
sentence.
Interestingly, she's somebodywho had previously no criminal
record.
She was fifty-three years ofage when she committed the
attack.
Uh, she had an engineeringdegree and a diploma in
international trade, soobviously a bright person, but
became just completely obsessedwith this other individual she
met online.
And then the wrong button.
(10:06):
See, that's just the sort ofthing that starts an intense
online feud right there.
No, just kidding.
This is the uh you know clearlyuh Claire.
You know, even though she'ssomebody with no record and all
of this and there were somemental health issues, ultimately
the Court of Appeal found therewas no mistake made by the
trial judge, and so the uh12-year sentence has been
(10:28):
upheld.
Uh and once again, thank you toall the sheriffs that are
keeping those of us that are atthe courthouse a lot safe, uh,
but for their intervention inthis case, this would probably
not have been an attemptedmurder case.
So that's the latest note ofthe Court of Appeal.
Adam Stirling (10:41):
Michael Mulligan with Mulligan Defense Lawyers.
Legally speaking, we'llcontinue right after this.
Legally speaking, with C Fax1070 with Michael Mulligan and
Mulligan Defense Lawyers.
Michael, up next on the agendasays Consumer Protection BC
decided Amazon, quote, didn'tdeliver to the customer when
allegedly leaving a package withan unknown person at the
(11:01):
delivery address.
What happened?
Michael Mulligan (11:04):
Well, I I must say this is, I think, pretty
important to know about becauseif you don't know about it,
you're not going to be able tomake use of it.
Uh and, you know, we've got uhBlack Friday Christmas coming
up, and so this is a decisiondealing with the Consumer
Protection Act and and a claimagainst uh Amazon.
And the fact pattern involves aperson who ordered uh some
(11:26):
merchandise from Amazon onlinedescribed as a portable dual
display and portable digitalstorage unit, whatever that
might be, for eight five hundredand eighty-two dollars and
seventy-five cents.
It sounds a bit like a toasterblender, but anyways, maybe it
was one item, maybe it was two,but nonetheless that's what it
uh was priced at.
So he paid for it.
(11:46):
Um and uh the uh thing orthings, uh, from his perspective
never showed up.
Uh and so he started with uhyou know contacting Amazon.
Hey, where's my stuff?
Um and Amazon uh responded bylooking at the information they
had in their system about thedelivery.
Um and the Amazon deliverypractice, many people be
(12:09):
familiar with this, they're notalways asking for like if they
show up, sometimes they'll justleave something on the porch,
right?
You then you may or may notwind up with a porch pirate.
Or they may knock on the door,maybe it's higher value things,
and hand it to somebody.
Now the challenge here uh isthat Amazon doesn't determine
who they've handed it to.
(12:29):
Uh and their system will track,apparently, uh like the GPS
coordinates of the person doingthe delivery.
And so this fellow said, Look,I didn't get my stuff, uh, to
which Amazon's response was,well, that's too bad, but you
know, somebody showed up at theright address.
We can tell that from the GPS,and they handed it to somebody
(12:49):
uh somebody at to answer thedoor, effectively.
Uh and this fellow said, Welllook, I didn't get it.
Uh and apparently he hadmultiple roommates, and none of
them uh they all denied gettingit.
But of course, who knows whathappened to the package.
Maybe a roommate took it andtook off with it, or maybe some
friend of the roommate took thething and was really enamored by
the dual display portable unit.
(13:11):
Who knows?
But the man says, I didn't getit.
Amazon tells him, sorry, wedon't believe you.
Uh and they affect the theirreason for that appears to be
that he had over the past threeyears or past year had three
other instances where he said Ididn't get delivery of whatever
it was that he ordered fromAmazon.
So Amazon took the position,well, we think you're uh, you
(13:32):
know, that's uh indicative thatmaybe you're doing something
fraudulent and claiming that youdidn't get these things.
So the fellow data uh lookedup, I guess, the Consumer
Protection Act and ultimatelymade a complaint with them after
Amazon said no, we're not uhrefunding your money, and it
looks like Amazon then canceledthe person's account.
Adam Stirling (13:51):
Wow.
Michael Mulligan (13:52):
And so the consumer protection uh people,
the director uh uh of thatorganization, conducted an
investigation into what went onhere.
Uh and indeed in BritishColumbia, we do have a Consumer
Protection Act.
That may be news to somepeople, um, and it sets out a
whole bunch of requirements andrights that attach to consumers
(14:13):
uh dealing with uh what aredescribed as um uh sort of uh a
distant sales uh contract, likethis kind of a thing, like an
agreement for the supply ofsomething remotely, like what
you order on Amazon.
Um and the distant salescontracts, that's what they're
referred to, um, they have anumber of things that must be in
(14:34):
them and a bunch ofrequirements, like informational
requirements for the consumer,this and that.
One of the provisions in there,and for those keeping track at
home, it's under section 491c ofthe uh that act, uh it says
this.
Uh, and it deals with when aperson can cancel a contract.
If at any time before the goodsor services are delivered, if
(14:55):
the goods or services to bedelivered under the contract are
not delivered to the consumer,to the consumer, that's
important, within 30 days of thesupply date, right?
That would be sort of the datethey say you're gonna get the
stuff, right?
Adam Stirling (15:06):
Okay, yeah.
Michael Mulligan (15:07):
Now, so when you say, look, I never got the
stuff, right?
That's certainly gonna bewithin 30, that's gonna, you you
know, didn't get it within 30days, you never got it, right?
That's the claim, right?
I never got the stuff.
Um, and so what the uh what hadto be sorted out in this
decision, uh consumer protectiondecision, was to sort out what
(15:28):
the term uh in that legislationmeans when it refers to delivery
uh to the consumer, right?
What does that mean?
Adam Stirling (15:36):
Yeah.
Michael Mulligan (15:36):
Uh is it enough to have delivery when
it's like dropped on the porch?
Does that do it?
Yeah uh uh is it uh delivery tothe consumer when you leave it
with an unknown person at thehome?
They don't know if it's aroommate, friend, somebody
visiting, you know, cleaninglady, who who knows?
They've left it with someone.
Adam Stirling (15:52):
Yeah.
Michael Mulligan (15:53):
And so the uh consumer protection people
pointed out that look, uh, youknow, there's uh sort of a
modern principle of statutoryinterpretation.
You're supposed to be lookingat like, well, what's the
legislative intent?
You know, what's the plainreading of the section?
Uh and then there's also aconcept there dealing with
consumer legislation like this,that terms like deliver or
delivery to the customer are tobe interpreted in a fashion
(16:16):
which is viewed as like generousto the consumer, not in a kind
of flinty way.
Uh and so the interpretationapplied here was that that
doesn't do it.
Uh just leaving it with anunknown person doesn't do it.
And Amazon argued in what wasdescribed as long, lengthy
submissions, that they ought notto be uh required to produce
(16:38):
photographic proof of deliveryor video proof of delivery, um,
saying that that would interferewith like privacy if they're
like handing the person, youknow, somebody the dual display
portable unit at the door, andthen they pull out a camera to
take a picture of you orsomething, they say, well, that
might be uh you know invasion ofprivacy issue, right?
So they're saying we shouldn'tbe required to do it.
And they agreed with thatproposition.
(16:59):
No, that's not a requirement.
You need not necessarily take apicture or a video.
But when you have somebodysaying, I didn't get it, uh,
they're going to have theobligation, the onus to
establish that they did deliverit to the consumer.
Um and if all you can say is uhwell, they showed up at the
rate GPS coordinates andsomebody there got it, um that's
(17:21):
not likely to do it in terms ofsatisfying um their burden to
show that they delivered thething to the consumer.
And the way this legislationworks is if they breach, for
example, that, like they don'tget the thing to you in 30 days
of the delivery date, itauthorizes the uh consumer to
cancel the contract.
And there's uh access to howthat may be done.
(17:42):
It's fairly generous, it can belike email, messages, various
different ways somebody can dothat.
Um and where you do cancel thecontract under the uh consumer
uh protection legislation, itmandates that the uh supplier
refund all of your money.
Uh and so and they have to dothat within 14 days.
And so that's what the personwas asking for here.
(18:04):
Look, I want a refund of the uh$500 and something dollars I
paid for this stuff.
Uh, and he wound up gettingexactly that.
Uh and so not only was heordered to uh uh the Amazon
ordered to refund the fivehundred and some odd dollars
that he paid for these things inaccordance with the
legislation, uh, but they alsoawarded him his legal costs for
(18:24):
bringing this uh application uhsuccessfully, uh which amounted
to something in excess, it wasnine thousand three hundred and
sixty-nine dollars.
And then further to that, uhapplied a ten thousand dollar
penalty to Amazon uh for whatthey had done in this case.
Now, the other anotherinteresting thing about all of
this is Amazon tried pointing tosome general contract
(18:45):
provisions, you know, thosethings that you must click on to
do anything in life, right?
Sort of forty-five pages oftext that says everything's your
fault.
Adam Stirling (18:52):
Yeah.
Michael Mulligan (18:53):
Uh and they pointed out that no, that
doesn't do it.
Uh, that you can't they whatthe current contract does is,
you know, this long terms andconditions, they would they try
to contractually allocate allrisk uh for things not getting
delivered to the consumer.
And they pointed out that no,you can't just override uh the
Consumer Protection Act bysaying the opposite uh in your
(19:17):
long terms of service.
Uh and so that doesn't do iteither.
Um it's not enough to just havea long thing that says, look,
everything's your fault, youtake all responsibility for
every package going missing, andif somebody porch pirate takes
it or somebody hit your homesome visitor at your home runs
off of it, your roommate's bestfriend or something, right?
Uh that doesn't override theconsumer protection legislation.
(19:38):
They did point out that thelegislation it does contemplate
there could be some expressagreement in uh for delivery in
some other way, and that may bewhat Amazon needs to implement,
right?
Like if you said, look, uhevery time something's sent over
it's worth more than fiftybucks or something, you might
have a system where you couldcome and say, Look, is it okay
to leave this with any randomstranger that shows up at the
(20:00):
door to pick it up, right?
And if somebody said, Yeah, I'mfine with anyone can get it,
um, that's likely to beat therequirements here.
Or Amazon could do otherthings.
You could have a circumstancewhere they say, look, if it's
worth more than $500 or somethreshold, we're going to ask
for uh, you know, what's yourname and signature or something.
Sometimes you'll get that witha courier.
You know, if you get asomething delivered that's more
(20:22):
expensive, sometimes they'llask, you know, what's your name?
And please sign here.
Uh and you know, you could haveyou could get to a point where
it would be possible for Amazonor another uh seller to satisfy
uh the uh to satisfactorilyprove that they did in fact
deliver it to the consumer,right?
Uh but it's probably not gonnado it, and certainly didn't do
(20:43):
it in this case, to say we leftit with someone or we left it on
the porch.
And so I think it's animportant decision, important
for people to know about,because if you don't know about
some of this stuff, you're gonnabe it's gonna be absolutely
impossible for you to uh availyourself of any of it.
So if you find out uh if theyou get hit by porch pirates uh
or if your roommate's bestfriend runs off with your uh
(21:05):
portable dual screen display uhand uh Amazon uh won't fix the
problem after you try with themand ultimately cancel the
contract under this legislation.
Um you need to know you have uhan avenue for uh redress.
Uh and when you engage that,that entire process, consumer
protection, uh also involvesthings like it was apparent in
this case, they investigated it,that people contact Amazon.
(21:28):
Uh there's something there foryou.
So you don't need to uh acceptthat Amazon's the final arbiter,
and uh that's the latest onAmazon uh and the uh Consumer
Protection Act.
Adam Stirling (21:38):
Michael Mulligan with Legally Speaking during the
second half of our second hourevery Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
All right.
Quick break back after this.
Good afternoon, Michael.
How are we doing?
Hey, good afternoon.
I'm doing great.
Dismissed.
Now, does the dismissed applyto the in a courtroom or or what
happened here?
Michael Mulligan (00:29):
Oh no.
So this was this was a uh womanwho was convicted uh not that
long ago of attempted murder,and the attempted murder
occurred literally in acourtroom in BC.
Wow.
And the background of theattempted murder in the
courtroom, it started all theway back in 2005.
Uh and the people involved, theaccused and the person who was
(00:52):
uh uh survived the murderattempt, uh met online on a
website described by the Courtof Appeal as one designed to
help the Chinese immigrimmigrant community connect in
Canada.
Uh and certainly the websitesucceeded in connecting these
two people, uh, but not in apositive way.
Um the uh both the uh accuseduh uh appellant, I guess, uh,
(01:15):
and the victim of the uh attackuh after meeting on this website
commenced a what was describedas an intense online feud uh
which went on for years, uh,which resulted in both of them
posting repeatedly insulting andpersonal attacks on one
another, uh, that eventually in2016 resulted in one of the
(01:37):
people, the person who was uh uhsurvived the attack in the
courtroom, suing the other womanfor defamation.
And then that personcountersued.
So they sued each other fordefamation, things that they
were posting online.
They both succeeded.
They both were found to haveengaged in uh defamatory conduct
(01:58):
online.
One of them was awarded $9,000,and the other person was
awarded $8,500.
So, you know, the net result$500.
But uh the accused in thiscase, the appellant, uh, was
also found guilty of uh contemptuh for continuing to post
things online during the courseof those proceedings, uh, and so
(02:20):
there was an award of twothousand dollars for that.
So I guess it's twenty fivehundred bucks after all of that.
Well, it didn't end there.
Uh the uh person who waseventually survived the attack
uh brought another applicationuh for uh contempt uh again uh
against the accused, uh, andthen the accused requested an
(02:41):
in-person hearing uh in on uhMay 25th, 2021.
Uh and it was at that courtappearance both women showed up
for this court appearance, umand the uh appellant accused at
the time uh was uh uh veryunfortunate.
She obviously took a uh numberof steps in preparing for what
(03:02):
happened there.
Uh she'd armed herself with aknife and hammer before coming
to court, she drank alcohol tobolster her courage.
Uh she brought a suitcaseeither to take to jail or flee
the attack, unclear which, uh,and dressed in all red to
disguise the bloodstains.
So that's not a good thing.
Uh and then the uh accused uhor the appellant waited uh in
(03:24):
the courtroom, and before thejudge appeared in the courtroom,
uh she attacked the other womanfrom behind, pummeling her with
a hammer and stabbing her uhwith a knife repeatedly, and she
inflicted at least ten stab andhammer blows before fortunately
a sheriff entered the courtroomand likely saved the life of
the woman who was beingattacked.
That's the factual background.
Adam Stirling (03:45):
Wow.
Michael Mulligan (03:45):
Uh, you don't see that every day.
And I must admit, comment onthe sheriff thing.
We're very fortunate to havesheriffs at the uh courthouses.
They're they're independent ofthe police, and the concept
there is you know, the policeare often witnesses in cases,
right?
And you don't want to have acircumstance where a judge is
being protected by the personwho's a witness in the case,
right?
That's going to give perhapsthe wrong impression.
And so we have sheriffs areindependent from the police, and
(04:07):
their task is security at thecourthouse.
Now, usually in BC, we'rereasonably safe, right?
There are in criminal casesthere would be a sheriff in
every courtroom that's insession, right?
And in some family and civilcases, there are also sheriffs
available where there's a highsecurity concern, like right now
at the Victoria Courthouse, umthere's a uh trial going on
(04:29):
involving alleged gang activityand informant and uh you know
this kind of thing.
And so, for example, they'vesealed off all but the main
entrance, and they've gotsheriffs there with a metal
detector scanning everyonecoming in and out so that
nobody's bringing a gun or knifeor hammer in, hopefully.
Um usually it's not that, uh,but uh where necessary the
sheriffs will do that sort ofprotection as well for the whole
(04:50):
courthouse.
So at this woman's trial, andshe had a trial, the the primary
issue uh was whether her mentalstate uh and she had uh alleged
that she was not criminallyresponsible as a result of a
mental disorder.
Now, in Canada, that's a fairlyhigh bar, right?
You you need to establish uh,you know, essentially that you
(05:11):
were had a disease of the mind,like a mental disorder, and they
rendered you incapable ofappreciating the natures of your
actions or knowing that it waswrong.
It's a very high threshold,right?
Um and while there was someevidence that this person had,
woman, maybe as evidenced by theuh knife and hammer attack in
the courtroom, some mentalhealth problems, including uh
(05:32):
depression, anxiety, and whatwas described as a mild alcohol
use disorder.
Remembering she also drank tobuild up courage before coming
in to commit this attack.
Uh ultimately at the trial, thejudge concluded no, she wasn't
N CRMD.
They accepted the doctor'sopinion, it just wasn't it
wasn't there, right?
Uh and by the way, you youdon't get there if you just get
(05:52):
yourself really drunk, right?
That's not going to get you toN CRMD.
Anyways, she was convicted ofthe attempted murder and
sentenced to uh a total oftwelve years.
Uh her counsel had suggestedthat the sentence should have
been lower, uh six years or so,arguing that uh the alcohol use
and mental illnesses which shedid have, although not to the
(06:13):
height of NCRMD, should havebeen mitigating.
And there is some authority forthat.
And the idea there is that, youknow, let's say somebody has a
serious mental illness thatcontributed to what they did,
but it didn't get to that highthreshold of NCRMD, right?
You can have a middle groundwhere you're still capable of
being criminally responsible forwhat you've done, but let's say
(06:34):
you had a mental illness whichcontributed to the offense or
why the person committed theoffense.
And the way courts have lookedat that, at least some courts in
the past, is that that can,even if it's not NCRMD, can
amount to what's referred to asa mitigating factor on
sentencing, right?
Um and so the argument here onthe appeal was that the trial
(06:57):
judge, uh having rejected theNCRMD, but did accept the you
know the evidence from the uhthe doctor who testified uh
there, every everyone seemed toaccept it, uh, that this woman
did have these various mental uhconditions, uh, which uh you
know maybe that helps explainwhy she got into this 20-year
feud, which apparently was twoways, right?
(07:18):
Both of these people wereengaged in that conduct.
Adam Stirling (07:20):
Yeah.
Michael Mulligan (07:21):
Um and so the argument was, well, hey, my the
moral culpability should havebeen lower, and the sentencing
judge um, you know, should havereduced the sentence to take
those things more into account,uh and so should have given a
sentence of less than uh twelveyears.
And the Court of Appeal indealing with that fact pattern
agreed with all of those things.
Yes, that you know, you canhave a circumstance where
(07:42):
there's reduced moralculpability as a result of a
mental disorder, right?
Even if it's not in CRMD.
But they they pointed out, forexample, in this case, right,
some of those things I mentionedat the outset.
Like this woman had clearlyplanned this attack in advance
to the point of packing asuitcase and putting on the red
clothing to cover up bloodstainsand you know, drinking to get
her courage up and armingherself and ask perhaps asking
(08:04):
for the in-person hearingaltogether, right?
Back in twenty twenty-one, thatwould many of these things
would have been you know online,right?
Yeah.
So she wanted this in-personhearing, maybe part of this
plan.
Adam Stirling (08:14):
Yeah.
Michael Mulligan (08:15):
And so the Court of Appeal, this is another
important thing to know on thesentence appeals, you know, the
Court of Appeal will lay outthose kind of principles and so
on.
Uh, but there's a high degreeof difference in the Court of
Appeal to decisions that trialjudges have made.
And so the Court of Appeal herepointed out that, you know,
while a judge could haveconcluded on this evidence about
(08:37):
the depression and so on, uh,that those things could have
reduced the moral culpability ofthis woman.
The judge wasn't required to dothat.
And the idea there is that thetrial judge is going to be in
the best position to make someof those kind of factual
findings and judgments, right?
They've heard from directly theexpert, you know, they've heard
the evidence at the trial,exactly what went on there.
(09:00):
And so the the Court of Appealwon't usually get in and sort of
tinker, even if the judge couldhave come to some different
decision, and even if the Courtof Appeal judges might say,
well, I might have come to adifferent decision if I were the
trial judge, that's not goingto do it, right?
You'd have to show that, look,there was just some error, for
example, the judge made.
Like, for example, had thesentencing judge said, you know,
(09:22):
I cannot take these things intoaccount when deciding whether
uh there's reduced moralculpability, that would have
been an example of, well, that'sjust incorrect.
You you could, right?
But if that could doesn't meanyou must.
Uh, and so on that basis, theuh Court of Appeal has uh, while
granting leave to appeal,dismissed the sentence appeal.
Um, and this woman will have toserve her uh twelve-year uh
(09:44):
sentence.
Interestingly, she's somebodywho had previously no criminal
record.
She was fifty-three years ofage when she committed the
attack.
Uh, she had an engineeringdegree and a diploma in
international trade, soobviously a bright person, but
became just completely obsessedwith this other individual she
met online.
And then the wrong button.
(10:06):
See, that's just the sort ofthing that starts an intense
online feud right there.
No, just kidding.
This is the uh you know clearlyuh Claire.
You know, even though she'ssomebody with no record and all
of this and there were somemental health issues, ultimately
the Court of Appeal found therewas no mistake made by the
trial judge, and so the uh12-year sentence has been
(10:28):
upheld.
Uh and once again, thank you toall the sheriffs that are
keeping those of us that are atthe courthouse a lot safe, uh,
but for their intervention inthis case, this would probably
not have been an attemptedmurder case.
So that's the latest note ofthe Court of Appeal.
Adam Stirling (10:41):
Michael Mulligan with Mulligan Defense Lawyers.
Legally speaking, we'llcontinue right after this.
Legally speaking, with C Fax1070 with Michael Mulligan and
Mulligan Defense Lawyers.
Michael, up next on the agendasays Consumer Protection BC
decided Amazon, quote, didn'tdeliver to the customer when
allegedly leaving a package withan unknown person at the
(11:01):
delivery address.
What happened?
Michael Mulligan (11:04):
Well, I I must say this is, I think, pretty
important to know about becauseif you don't know about it,
you're not going to be able tomake use of it.
Uh and, you know, we've got uhBlack Friday Christmas coming
up, and so this is a decisiondealing with the Consumer
Protection Act and and a claimagainst uh Amazon.
And the fact pattern involves aperson who ordered uh some
(11:26):
merchandise from Amazon onlinedescribed as a portable dual
display and portable digitalstorage unit, whatever that
might be, for eight five hundredand eighty-two dollars and
seventy-five cents.
It sounds a bit like a toasterblender, but anyways, maybe it
was one item, maybe it was two,but nonetheless that's what it
uh was priced at.
So he paid for it.
(11:46):
Um and uh the uh thing orthings, uh, from his perspective
never showed up.
Uh and so he started with uhyou know contacting Amazon.
Hey, where's my stuff?
Um and Amazon uh responded bylooking at the information they
had in their system about thedelivery.
Um and the Amazon deliverypractice, many people be
(12:09):
familiar with this, they're notalways asking for like if they
show up, sometimes they'll justleave something on the porch,
right?
You then you may or may notwind up with a porch pirate.
Or they may knock on the door,maybe it's higher value things,
and hand it to somebody.
Now the challenge here uh isthat Amazon doesn't determine
who they've handed it to.
(12:29):
Uh and their system will track,apparently, uh like the GPS
coordinates of the person doingthe delivery.
And so this fellow said, Look,I didn't get my stuff, uh, to
which Amazon's response was,well, that's too bad, but you
know, somebody showed up at theright address.
We can tell that from the GPS,and they handed it to somebody
(12:49):
uh somebody at to answer thedoor, effectively.
Uh and this fellow said, Welllook, I didn't get it.
Uh and apparently he hadmultiple roommates, and none of
them uh they all denied gettingit.
But of course, who knows whathappened to the package.
Maybe a roommate took it andtook off with it, or maybe some
friend of the roommate took thething and was really enamored by
the dual display portable unit.
(13:11):
Who knows?
But the man says, I didn't getit.
Amazon tells him, sorry, wedon't believe you.
Uh and they affect the theirreason for that appears to be
that he had over the past threeyears or past year had three
other instances where he said Ididn't get delivery of whatever
it was that he ordered fromAmazon.
So Amazon took the position,well, we think you're uh, you
(13:32):
know, that's uh indicative thatmaybe you're doing something
fraudulent and claiming that youdidn't get these things.
So the fellow data uh lookedup, I guess, the Consumer
Protection Act and ultimatelymade a complaint with them after
Amazon said no, we're not uhrefunding your money, and it
looks like Amazon then canceledthe person's account.
Adam Stirling (13:51):
Wow.
Michael Mulligan (13:52):
And so the consumer protection uh people,
the director uh uh of thatorganization, conducted an
investigation into what went onhere.
Uh and indeed in BritishColumbia, we do have a Consumer
Protection Act.
That may be news to somepeople, um, and it sets out a
whole bunch of requirements andrights that attach to consumers
(14:13):
uh dealing with uh what aredescribed as um uh sort of uh a
distant sales uh contract, likethis kind of a thing, like an
agreement for the supply ofsomething remotely, like what
you order on Amazon.
Um and the distant salescontracts, that's what they're
referred to, um, they have anumber of things that must be in
(14:34):
them and a bunch ofrequirements, like informational
requirements for the consumer,this and that.
One of the provisions in there,and for those keeping track at
home, it's under section 491c ofthe uh that act, uh it says
this.
Uh, and it deals with when aperson can cancel a contract.
If at any time before the goodsor services are delivered, if
(14:55):
the goods or services to bedelivered under the contract are
not delivered to the consumer,to the consumer, that's
important, within 30 days of thesupply date, right?
That would be sort of the datethey say you're gonna get the
stuff, right?
Adam Stirling (15:06):
Okay, yeah.
Michael Mulligan (15:07):
Now, so when you say, look, I never got the
stuff, right?
That's certainly gonna bewithin 30, that's gonna, you you
know, didn't get it within 30days, you never got it, right?
That's the claim, right?
I never got the stuff.
Um, and so what the uh what hadto be sorted out in this
decision, uh consumer protectiondecision, was to sort out what
(15:28):
the term uh in that legislationmeans when it refers to delivery
uh to the consumer, right?
What does that mean?
Adam Stirling (15:36):
Yeah.
Michael Mulligan (15:36):
Uh is it enough to have delivery when
it's like dropped on the porch?
Does that do it?
Yeah uh uh is it uh delivery tothe consumer when you leave it
with an unknown person at thehome?
They don't know if it's aroommate, friend, somebody
visiting, you know, cleaninglady, who who knows?
They've left it with someone.
Adam Stirling (15:52):
Yeah.
Michael Mulligan (15:53):
And so the uh consumer protection people
pointed out that look, uh, youknow, there's uh sort of a
modern principle of statutoryinterpretation.
You're supposed to be lookingat like, well, what's the
legislative intent?
You know, what's the plainreading of the section?
Uh and then there's also aconcept there dealing with
consumer legislation like this,that terms like deliver or
delivery to the customer are tobe interpreted in a fashion
(16:16):
which is viewed as like generousto the consumer, not in a kind
of flinty way.
Uh and so the interpretationapplied here was that that
doesn't do it.
Uh just leaving it with anunknown person doesn't do it.
And Amazon argued in what wasdescribed as long, lengthy
submissions, that they ought notto be uh required to produce
(16:38):
photographic proof of deliveryor video proof of delivery, um,
saying that that would interferewith like privacy if they're
like handing the person, youknow, somebody the dual display
portable unit at the door, andthen they pull out a camera to
take a picture of you orsomething, they say, well, that
might be uh you know invasion ofprivacy issue, right?
So they're saying we shouldn'tbe required to do it.
And they agreed with thatproposition.
(16:59):
No, that's not a requirement.
You need not necessarily take apicture or a video.
But when you have somebodysaying, I didn't get it, uh,
they're going to have theobligation, the onus to
establish that they did deliverit to the consumer.
Um and if all you can say is uhwell, they showed up at the
rate GPS coordinates andsomebody there got it, um that's
(17:21):
not likely to do it in terms ofsatisfying um their burden to
show that they delivered thething to the consumer.
And the way this legislationworks is if they breach, for
example, that, like they don'tget the thing to you in 30 days
of the delivery date, itauthorizes the uh consumer to
cancel the contract.
And there's uh access to howthat may be done.
(17:42):
It's fairly generous, it can belike email, messages, various
different ways somebody can dothat.
Um and where you do cancel thecontract under the uh consumer
uh protection legislation, itmandates that the uh supplier
refund all of your money.
Uh and so and they have to dothat within 14 days.
And so that's what the personwas asking for here.
(18:04):
Look, I want a refund of the uh$500 and something dollars I
paid for this stuff.
Uh, and he wound up gettingexactly that.
Uh and so not only was heordered to uh uh the Amazon
ordered to refund the fivehundred and some odd dollars
that he paid for these things inaccordance with the
legislation, uh, but they alsoawarded him his legal costs for
(18:24):
bringing this uh application uhsuccessfully, uh which amounted
to something in excess, it wasnine thousand three hundred and
sixty-nine dollars.
And then further to that, uhapplied a ten thousand dollar
penalty to Amazon uh for whatthey had done in this case.
Now, the other anotherinteresting thing about all of
this is Amazon tried pointing tosome general contract
(18:45):
provisions, you know, thosethings that you must click on to
do anything in life, right?
Sort of forty-five pages oftext that says everything's your
fault.
Adam Stirling (18:52):
Yeah.
Michael Mulligan (18:53):
Uh and they pointed out that no, that
doesn't do it.
Uh, that you can't they whatthe current contract does is,
you know, this long terms andconditions, they would they try
to contractually allocate allrisk uh for things not getting
delivered to the consumer.
And they pointed out that no,you can't just override uh the
Consumer Protection Act bysaying the opposite uh in your
(19:17):
long terms of service.
Uh and so that doesn't do iteither.
Um it's not enough to just havea long thing that says, look,
everything's your fault, youtake all responsibility for
every package going missing, andif somebody porch pirate takes
it or somebody hit your homesome visitor at your home runs
off of it, your roommate's bestfriend or something, right?
Uh that doesn't override theconsumer protection legislation.
(19:38):
They did point out that thelegislation it does contemplate
there could be some expressagreement in uh for delivery in
some other way, and that may bewhat Amazon needs to implement,
right?
Like if you said, look, uhevery time something's sent over
it's worth more than fiftybucks or something, you might
have a system where you couldcome and say, Look, is it okay
to leave this with any randomstranger that shows up at the
(20:00):
door to pick it up, right?
And if somebody said, Yeah, I'mfine with anyone can get it,
um, that's likely to beat therequirements here.
Or Amazon could do otherthings.
You could have a circumstancewhere they say, look, if it's
worth more than $500 or somethreshold, we're going to ask
for uh, you know, what's yourname and signature or something.
Sometimes you'll get that witha courier.
You know, if you get asomething delivered that's more
(20:22):
expensive, sometimes they'llask, you know, what's your name?
And please sign here.
Uh and you know, you could haveyou could get to a point where
it would be possible for Amazonor another uh seller to satisfy
uh the uh to satisfactorilyprove that they did in fact
deliver it to the consumer,right?
Uh but it's probably not gonnado it, and certainly didn't do
(20:43):
it in this case, to say we leftit with someone or we left it on
the porch.
And so I think it's animportant decision, important
for people to know about,because if you don't know about
some of this stuff, you're gonnabe it's gonna be absolutely
impossible for you to uh availyourself of any of it.
So if you find out uh if theyou get hit by porch pirates uh
or if your roommate's bestfriend runs off with your uh
(21:05):
portable dual screen display uhand uh Amazon uh won't fix the
problem after you try with themand ultimately cancel the
contract under this legislation.
Um you need to know you have uhan avenue for uh redress.
Uh and when you engage that,that entire process, consumer
protection, uh also involvesthings like it was apparent in
this case, they investigated it,that people contact Amazon.
(21:28):
Uh there's something there foryou.
So you don't need to uh acceptthat Amazon's the final arbiter,
and uh that's the latest onAmazon uh and the uh Consumer
Protection Act.
Adam Stirling (21:38):
Michael Mulligan with Legally Speaking during the
second half of our second hourevery Thursday.
Michael, thank you so much.
Pleasure as always.
Thanks so much.
Always great to be here.
All right.
Quick break back after this.
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