0:00

time for a regular segment with Barrister

0:02

and Slyster with Mulligan defense lawyers . It's Michael

0:04

Mulligan with Legally Speaking on

0:06

CFAQ 1070 . Morning Michael , how we doing

0:08

.

0:09

Hey , good morning . I'm doing great . Always good to be

0:11

here .

0:12

Right off the top . I see the provincial government

0:14

is making an attempt to modernize

0:17

something , and it's the Law Society of British

0:19

Columbia . I have to ask how is that going

0:21

?

0:22

Not well . So I

0:24

guess it's one of those things when

0:26

you hear government talk like

0:28

modernization modernization of something you

0:31

should carefully scrutinize what's going on

0:33

and what they've

0:35

just released they describe as sort of

0:37

an update to their plans

0:39

, to quote , modernize this

0:42

issue , that is to say the regulation of legal

0:44

procession , and the proposals

0:47

, unfortunately , are seriously

0:49

problematic and hopefully

0:51

there is a complete rethink

0:53

about whether this should proceed . The

0:57

starting point for all of this , which

1:00

is an important one , which is to say

1:02

the legal profession is a self-governing

1:05

profession . It's not controlled

1:07

by the government , and

1:09

a little bit of reflection should

1:12

be clear why that is so important

1:14

, and indeed the Supreme

1:17

Court of Canada has recognized that

1:19

, saying essentially that language

1:21

is so far as human ingenuity can

1:24

be , so designed . The legal

1:26

profession needs to be free from state interference

1:28

, particularly in fields like

1:31

criminal law or public law , things

1:34

like that , where the government is on the other side

1:36

of it . You do not want to have a state

1:38

of affairs when you go to a

1:40

lawyer to hire them to defend you in a criminal

1:42

case . Help you if the government is trying

1:44

to take your children , trying to advance

1:47

your land claim , trying

1:49

to sue the government for something , or even

1:52

, indeed , when you're dealing with government-owned

1:55

entities like ICBC , for

1:57

example . You do not want a state

1:59

of affairs where the person you're trying to hire is

2:02

looking over their shoulder about

2:04

whether they might be in breach of

2:06

some desire of the government

2:08

entity that you're trying to defend yourself

2:10

against or sue or try

2:13

to get some constitutional remedy

2:15

from . So it should be apparent

2:17

, and the

2:19

proposal at its heart would go

2:22

a long distance to undermining that

2:24

. The proposal

2:27

, while couched in the language of modernization

2:30

, really amounts

2:32

to an effort by the government to exercise

2:34

additional control over the legal

2:37

profession . For

2:39

example , the Law Society

2:41

Now , which is independent of government

2:43

, has 25

2:46

elected members who are lawyers

2:48

. They are volunteers and

2:50

they're on the board of directors of

2:52

the Law Society . The government appoints

2:54

six members of

2:57

the public to

2:59

be on the board as well . This proposal

3:01

would reduce the number of elected

3:04

lawyers , or total number of people

3:06

on that board , to 17 , and

3:08

only nine of them a

3:11

bare majority , would be elected

3:13

lawyers . The idea is the government wants to

3:15

exercise additional control . They

3:18

have a variety of objectives that are apparent

3:20

from their proposal . One

3:23

of the justifications is DRIP-A

3:25

, that writes of indigenous

3:27

people . Yeah , like that . Another

3:30

thing which they make reference to is

3:32

a desire to , and

3:34

part of the way the government speak here

3:36

. In addition to this quote , modernization

3:39

they use this language of single

3:41

regulator . What's

3:43

going on ? There is really two things . First

3:45

of all , we have in British Columbia lawyers

3:48

. We also have notaries , which perform

3:50

some functions like drafting wills

3:52

and things of that sort

3:54

, notarizing documents . The

3:57

history of that is having people in smaller communities

3:59

so that those legal services are more readily

4:01

available . One of the other things

4:03

that's been an ongoing source of tension

4:06

is the issue of whether and what

4:08

role paralegal should have been providing

4:10

legal services . We

4:12

have paralegals in British Columbia , but

4:15

they operate currently under the supervision

4:17

of a lawyer . If you go and hire a lawyer

4:19

, they might have a paralegal that would assist with

4:21

doing some work on the file

4:24

. With the idea that it would reduce cost

4:26

, the government has in

4:28

mind having paralegals operating

4:30

in an unsupervised way

4:32

, as an alternative to

4:35

properly funding legal aid

4:37

. The idea would be that , for poor people

4:39

, the government could have a paralegal

4:41

providing them assistance rather

4:44

than providing legal aid funding

4:46

. That's one of the other motivations that's

4:48

been a source of tension over the years , because

4:51

the law society's principal obligation

4:54

is to ensure the

4:56

public interest , production of the public . That's

4:58

why we regularly wear this

5:00

at all Right , just

5:03

like other functions . You

5:05

don't want somebody who's not trained as an electrician

5:07

showing up to prevent a wire of your house , or

5:10

somebody who just fancies themselves a doctor

5:12

performing surgery on you . That's

5:14

why we have a law society to

5:16

regulate and ensure that people providing

5:18

legal services are properly qualified

5:20

, follow ethical obligations , and

5:23

if they don't , they can be disciplined

5:25

. That's why we have , and

5:27

so there's been a tension there about you know , what

5:29

role should paralegals have ? Should they be supervised

5:31

? Should they be working on their own ? What form of training

5:33

should they have ? And the government wants

5:35

to have that advanced to save

5:37

money and providing legal services to the poor

5:40

. So that's one of the points of friction . So

5:42

the proposal is very problematic

5:45

and you

5:48

can tell that from the law society's response

5:50

to it , which is essentially clear . This

5:52

is not a good idea . The

5:55

other thing which is interesting in this proposal

5:57

is something that I've had some experience

5:59

with over the years , and

6:02

it's a proposal to prevent

6:04

members of the law society from

6:07

passing resolutions to direct

6:10

what the law society should do . That's

6:13

one of the elements that exists as part

6:15

of the self-deferring profession and

6:18

it's something that I've had some involvement with over

6:20

the years , and the government

6:22

wants to stop that , and

6:24

a couple of examples of that

6:26

that I've had some involvement with a number

6:28

of years ago now , probably 20

6:30

plus years , has to do with math One

6:34

of the resolutions of the members brought was

6:36

to censure the then attorney general over

6:39

funding cuts to legal aid , and

6:41

so that kind of

6:43

effort would be prevented . The

6:45

government doesn't want that sort of thing happening , right

6:47

? All these uppity lawyers telling

6:50

them that what they're doing is inappropriate

6:52

. Another example of that that

6:54

I had some involvement with was

6:57

a proposal to approve a

6:59

new law school . Law Law

7:01

schools require accreditation

7:04

by the law society if they want to have their

7:06

degree recognized for

7:08

the purpose of becoming a lawyer

7:11

in British Columbia . You can't just start . You

7:13

know Mulligan's law hot , that's

7:15

what they're issuing law degrees . Well , you can

7:17

, but they're not going to be good for anything , right

7:19

, and so the law

7:22

society has to credit

7:24

the institution . And

7:26

there was an institution that was a religiously

7:28

based one , that had policies that

7:30

would punish or

7:32

expel people who were engaged in same

7:34

sex relationships , which

7:37

, to my mind at the time , was a outrageous policy

7:39

and

7:41

in conflict with the law society's

7:44

fundamental objectives to uphold and protect the

7:46

legal rights of all people in British

7:48

Columbia . Right , how can you credit an

7:51

institution which is clearly

7:53

engaged in that behavior ? That's

7:56

an example of where the law

7:59

society ventures approved the institution , and

8:02

only by the effort of a resolution

8:05

of the members lawyers thousands of

8:07

them showed up and voted . They were told

8:09

no , you can't approve it , and

8:12

so that approval was

8:14

revoked Ultimately . And those are

8:16

examples of how involvement

8:19

from the membership and directing

8:21

what their profession should be doing the

8:24

government wants to stop , and

8:26

so , if the government has its way

8:28

here , it would both

8:31

involve a increase

8:33

of government control over the regulation of

8:35

lawyers for their own purposes , uh

8:38

, including , as I said , uh

8:40

, that issue of who is qualified to

8:42

do what and whether that's a good idea . It's clear

8:45

why the government wants that , but

8:47

in addition , you would

8:49

have a circumstance where the

8:51

members of the losses of lawyers would

8:53

not be able to engage

8:56

in the sort of uh activity that

8:58

I've just referred to , which you can

9:00

understand . If you are the government , uh

9:02

, you may not like the idea of there

9:04

being an independent group of people

9:06

who may push back Uh

9:09

on things that you wish to do . Yeah , that's

9:11

sort of understandable . People want to have all the power

9:14

and control for themselves and anyone else is Mucking

9:17

with them or telling them that they don't have confidence

9:19

in them or their policies might be Objectionable

9:22

. Uh , you can understand why . Naturally

9:25

, nobody wants that right . It's sort

9:27

of like , hey , you know , like some group of people who

9:29

might Oversee you or sue you

9:31

or oppose what you're doing , or whatever

9:33

it might be . Clearly that's uncomfortable

9:35

, uh , and so this appears to

9:37

be an effort by the government to control

9:40

Uh that kind of pushback

9:42

, and it's very unfortunate

9:45

Uh and I should say this

9:47

the fact that there

9:49

is an independent Um borough

9:52

there that you can go and hire a lawyer who is not

9:55

looking over their shoulder , but what the government

9:57

thinks uh in terms of what they're

9:59

doing or how they're opposing it , and they can vigorously

10:01

Sue the government to do whatever

10:04

is uh lawfully required to

10:06

help you . Uh is very

10:08

, very important and you

10:10

know I appreciate it may not be something people think

10:12

about every day I get that right

10:14

but you should think about

10:16

it because the existence of

10:19

an independent legal profession

10:21

is part of what Uh keeps

10:23

you as an individual free

10:25

of oppression by the

10:27

government . Without that , you're

10:30

pretty powerless . Right when the government

10:32

comes and says I'm taking your land or I'm putting you

10:34

in jail , or I'm taking your children , or

10:36

I'm not going for us this or that , right

10:39

If there's no one you can go to to get

10:41

help , or the people you can go to are beholden

10:43

to the government . Just think about the position

10:46

you're left in , uh

10:48

, and we . We have an unfortunate history

10:50

of some of that in british clumbia that should be remembered

10:52

. We had for many years , for example

10:55

, and in canada , uh , indigenous

10:57

people were prohibited from hiring lawyers . Hmm

11:00

, think about that , right , uh

11:02

. And so if you are a first

11:04

nation in british clumbia and you see

11:06

this coming , you should look very

11:09

long and hard at what's going on here

11:11

. And while I appreciate

11:13

there is lip service to things like grippa

11:15

in this proposal , um

11:18

, you need to remember that at the end of

11:20

the day , your interests are

11:22

often in conflict with

11:25

what the government wants , and you

11:27

might like the current government , but you might not

11:29

like the next one , uh , and so

11:31

you should be very , very slow and

11:33

careful , uh , before you

11:35

think that it would be a great idea to allow

11:37

government control or increased government

11:40

control over the people . That

11:42

are , the people whose

11:44

task it is to defend

11:46

you if you wind up in a legal dispute

11:49

, and so this is a terrible

11:51

proposal . People should

11:53

read completely through the government speak

11:56

explanation for it , and

11:59

it is an attempt to creep

12:01

further down the

12:03

direction of government control over people

12:05

and to prevent the

12:08

sort of pushback which the government gets

12:10

from lawyers , and

12:13

you can understand why they may feel uncomfortable and not

12:15

like that , but this is not

12:17

an appropriate response to

12:20

that . So hopefully there's a careful rethink

12:22

about the wisdom of this proposal

12:25

.

12:25

Michael Mulligan , with Mulligan Defense Lawyers , legally

12:27

Speaking , will have more right after this . Back

12:30

on the air here with CFAQ 1070 , michael Mulligan

12:33

with Mulligan Defense Lawyers , legally Speaking up . Next

12:35

, a judge concludes . Icbc

12:37

, engaged in conduct , says

12:39

here described as egregious

12:41

, refusing to pay compensation

12:43

order . I didn't know , you could just refuse an order

12:46

Michael .

12:46

Yeah , indeed , and

12:48

I must say that heading maybe

12:51

is not news to many people in terms of how

12:53

ICBC behaves , but

12:55

here's how they could refuse to do something . This

12:59

is a case . It's a Victoria case . It involves

13:01

a woman who's now 65 , she

13:03

had a few years ago , back in 2017

13:05

, was walking along Oak Bay Avenue and

13:08

she eventually got backed over by

13:10

a van a terrible accident . She wound

13:12

up breaking her pelvis and a whole bunch of other injuries

13:15

, seriously hurt , and it's obviously

13:17

still impacting her life now

13:19

. It's

13:21

also a good example of no

13:23

fault . That's the difference there and what we

13:26

had at the time . So this fortunately

13:28

for her predated no fault insurance

13:30

in 2021 . But even

13:33

prior to 2021 , when we

13:35

moved to a strictly no fault system

13:37

in BC , under ICBC

13:39

, there was still a no

13:41

component of no fault . In this way

13:43

, prior to 2021

13:46

, if you got injured in a car accident , you

13:48

could sue the other person who drives over you with

13:50

their van , right . What you can't do after

13:52

2021 is you can't sue the van driver

13:54

. You're left only with

13:57

what ICBC might choose

13:59

to give you . But even prior

14:01

to that change , there was a part

14:03

of ICBC insurance it was called Part

14:05

Seven Benefits which

14:07

would provide things like rehabilitative

14:12

care , crutches , wheelchairs

14:14

, things like that , regardless

14:16

of whether you were responsible

14:18

for the car accident or not . So even if you

14:20

were the careless person who rear end somebody

14:23

, you would still get those basic healthcare

14:27

requirements covered for you under those Part

14:29

Seven Benefits , and

14:31

they had a limit of $150,000

14:33

at the time . And so when you hear

14:35

the government talk about how the change to

14:37

no fault is in quote

14:39

, enhanced care , close quote what

14:42

they've done is increase the potential

14:44

amount of those no fault benefits and

14:46

completely eliminate the ability to sue

14:48

. Right , so that's what's enhanced

14:51

. The thing that's gone is the bigger

14:53

thing , but that's the background . And

14:56

so at the time , one of the things

14:58

you don't want is you don't want somebody recovering twice

15:00

, right . And

15:04

so when you sue somebody , a large

15:06

part of what you might recover would be the

15:08

cost of your future care , like , do you

15:10

require nursing care or do you require

15:13

physiotherapy

15:15

or whatever it might be ? And so in

15:17

this case , the judge awarded a total

15:19

of . He went to court . Icbc refused

15:21

to pay , so went to court . The judge awarded

15:23

this retired teacher a

15:25

total of $407,000

15:27

, of which $272,000

15:30

were for future care , nursing care

15:32

, rehabilitation , that kind of thing . There's

15:35

a section of the ICBC , by

15:37

the way , appealed that to the court of appeal and lost

15:39

. But

15:41

then what they did is that there's

15:44

a section of the insurance motor

15:46

vehicle act section of the money that allows ICBC

15:48

to deduct payments

15:51

that would be those old no fault payments

15:53

from the amount somebody was awarded

15:56

, so they don't get paid twice for the same thing

15:58

, right ? That sort of makes sense , right , like

16:00

if the judge said I'm giving you money for physiotherapy

16:03

, you don't get the money for physiotherapy

16:05

twice , you only get it once . Fair enough

16:07

. But what

16:09

happened here is ICBC was refusing

16:11

to pay the woman any of her

16:13

physiotherapy costs . She would put in

16:16

claims and they wouldn't pay them . Months would go by

16:18

, more than a year

16:20

in one case . But then they said well

16:22

, now we're not paying you the money . The judge ordered

16:24

you at least a large

16:26

portion of it , because

16:29

we

16:31

say that that could be covered in the future under

16:33

those Part 7 benefits . We're not paying you but

16:35

it could happen and so we're just going

16:38

to deduct that and

16:40

sort of on a literal reading

16:42

of the section that might be a possible

16:44

interpretation . But you can appreciate how seriously

16:47

unfair that is when you are

16:49

saying we're not paying it , but

16:51

we might pay it in the future , so we're just deducting

16:54

that . Too bad for you . And

16:57

so this woman had to hire a

16:59

lawyer again , go to court

17:01

, and the judge , who originally

17:03

ordered her to be compensated

17:06

by the getting run over by the van , was

17:09

extremely critical

17:11

of how ICBC was

17:13

conducting itself here . She

17:16

concluded that the judge concluded

17:18

that she was unable to presume that

17:20

ICBC would conduct itself honorably

17:22

. Moving forward , she

17:25

reviewed just the terrible unfairness

17:27

of how they were approaching

17:29

and using that section , so that section was not

17:31

intended for that purpose . And

17:34

so , to prevent ICBC from

17:36

continuing to use that section , they were not

17:38

paying you what was ordered by the judge and upheld

17:40

by the court of appeal . The

17:43

woman waived any future entitlement

17:46

to those possible no fault

17:48

benefits . I said , okay , I just waived

17:50

all of them . Pay me . And

17:53

that's what the judge ordered , because what

17:55

good is a possible payment

17:58

that you will not make ? And

18:00

so that is how ICBC , despite

18:02

being ordered by a judge , upheld by the court of

18:04

appeal and promising because they promised

18:06

to treat this woman

18:08

properly and pay her what she was due , they

18:11

refused to until the matter wound up

18:13

back in court , and that's how the judge

18:15

addressed it and

18:17

so very upsetting in terms of how a

18:19

public entity would conduct itself . And

18:22

there's yet another example this isn't criminals

18:24

not taking your children , and it's not a land claim

18:26

. This is just a dispute with

18:29

a government owned insurance company . And

18:32

another example of how it's so important

18:34

that there be this opportunity to go to court

18:36

and have a judge to order them to

18:39

do what they have to do . By the way , that's

18:41

over , uh , and so

18:43

we now have no fault . So you now

18:45

live in a world , uh , where if

18:47

ICBC is treating you as clearly

18:49

the treat people this is yet another example

18:52

of it uh your remedies are

18:54

going to be seriously limited . You're going to be

18:56

left with going to an ombuds person that

18:58

works at ICBC or

19:00

trying to complain to a thing called the civil resolution

19:03

tribunal , where the people working

19:05

in it are on short term renewable government

19:07

contracts .

19:08

Yeah .

19:09

Good luck trying to get somebody on a short

19:11

term renewable government

19:13

contract uh to speak

19:15

about , uh , how the government

19:17

owned entity uh is

19:19

engaged in the greigious conduct

19:22

and treating you in a completely unacceptable

19:24

way . Guess what happens next time their contract

19:26

comes up ? Uh and so

19:28

this is another example of why it is so important

19:31

that there be an independent bar

19:33

and you can go to somebody who is not concerned about

19:35

going and taking it to the government and eventually

19:38

this woman should now , after many

19:40

years , get what she deserves

19:42

. I see BC has been refusing to do it and dragging

19:45

their feet in every way possible . Um

19:47

and uh . So hopefully the uh

19:49

retired injured school

19:51

teacher uh can get

19:53

the money she needs for her physiotherapy because

19:55

she couldn't pay for it . Um , she was

19:57

retired on a limited income and I see BC just

20:00

wouldn't pay her . Uh and so

20:02

, uh , hopefully now she'll get what she deserves . And

20:04

yet another example of why it's so important

20:06

that she has that safety belt .

20:08

Yeah , I hope so too . We have two minutes

20:10

left and one story about a judge warning

20:13

about identity fraud with respect

20:15

to indigenous status . What's going

20:17

on ?

20:18

So what's going on here is , for many years

20:20

in Canada we've had vastly too

20:22

many , um , people who are indigenous

20:25

in prison . They're just , they're completely overrepresented

20:28

and it gets worse every year . Uh

20:30

, and various things have been tried over the

20:32

years to help with that . This Marine

20:34

Corps to Canada and the case called glad do spoke

20:36

about that and spoke about the terrible

20:38

history of indigenous people and how that ought to be a consideration

20:41

on sentencing . Uh , it still

20:43

hasn't had that effect , but they're

20:45

, we're trying . One of the things

20:47

which has developed , though this judge spoke about it . As they said

20:50

, the judge described it this way a tsunami

20:53

is coming , driven by a desire of non-indigenous

20:55

people to get what they perceive to be a benefit of identifying

20:58

as indigenous . And so

21:00

the issue here was okay , the Supreme

21:02

Court of Canada said we , you know we have this terrible problem is

21:04

getting worse . Uh , we should

21:06

be taking somebody's background into account

21:09

when sentencing them . Right , if they'll

21:11

say they were a survivor of residential school , that should be a consideration

21:15

when determining whether they should go to jail for their you know , the

21:17

salt case or whatever it might be . Yeah , now

21:21

the judge here said look , this person is identified

21:24

as matey , but there's nothing

21:27

else to really support that we operate on the basis of self identification , um

21:30

, and so the judge just said look , they

21:32

just doesn't accept that . Interestingly

21:35

, the judge has sort of opined that the person didn't do a DNA test

21:39

to try to connect up their uh background

21:41

, which is an interesting thing as well . And so there's

21:43

some just really big questions there we

21:47

need to be asking about . What do we do about this problem ? Is

21:49

the approach we're taking an appropriate one ? Is

21:52

self identification the right method , or

21:56

is it appropriate for people to be doing DNA tests to

21:58

determine that ? And then

22:00

I guess the other bigger question is should sentencing be a

22:02

function

22:04

of your DNA analysis rather than an assessment

22:07

of what impacts did something have on your life

22:09

, not what was does your DNA say ? Right

22:11

, that's been an approach the US Supreme

22:13

court has taken in terms of college admissions

22:18

recently , saying your background can't be a factor , but personal things that affected

22:20

you can be a factor , and so maybe that's what

22:22

we need to move to in Canada , rather

22:24

than DNA testing

22:27

, which seems a little uh Orwellian in terms of sentencing . So

22:31

that's the case about the tsunami of uh false identifications this judge is

22:33

worried is warning about Indeed Michael Mulligan

22:35

with Mulligan defense lawyers , legally speaking during the second

22:39

half of our second hour every Thursday on C facts .

22:43

A pleasure as always , michael , thanks for the time . Thanks so much . Always great

22:45

to be here .

22:45

All right , all right

22:47

, bye now .