Miscellaneous
This week on Legally Speaking with Michael Mulligan:More than 400 people are being prosecuted for criminal contempt arising from alleged breaches of an order from the BC Supreme Court that prohibits people from obstructing logging at Fair Creek. This has resulted in some logistical issues with large numbers of accused people requiring legal advice prior to entering pleas and fixing dates for trial or sentencing. Following the Stanley Cup riots, Legal Aid BC developed a mass arrest policy to facilitate the provision of legal advice to large numbers of accused people. Both the initial court appearances and the provision of summary legal advice are occurring by phone or video connection because of COVID. For accused people who qualify for legal aid, Legal Aid BC has suspended choice of counsel and is assigning cases to one of a team of lawyers who are defending groups of people, based on the day they were arrested. The Rainforest Flying Squad has apparently been using donated money to pay for lawyers only for accused people who are black, indigenous, or people of colour. Other accused people, who can’t afford a lawyer, are being left to seek help from Legal Aid BC. Trial dates are being set for 5 days each and will be comprised of all the people arrested on each day. This will permit common evidence concerning what occurred each day to be heard by the judge once for the relevant group of accused people. In BC there are a substantial number of prior criminal contempt sentencing cases because of previous unlawful protest activity. Based on factors that influenced prior cases, Crown Counsel has developed a formula for what kind of sentences they will ask for if an accused person pleads guilty. While the judge will ultimately decide what sentence to impose if someone pleads guilty, the Crown sentencing position is determined by factors including: 1)When the person engaged in criminal contempt. In this regard, previous cases have made clear that sentences are to increase over time until compliance is achieved. 2)When someone pleads guilty. In this regard, the Crown’s position on sentence increases as time passes to encourage people to plead guilty earlier. There may be some issue with the approach being taken by Crown in this regard because the rate at which their suggested sentence increases is more than what courts would ordinarily engage in. 3)Whether the person used a device to avoid being removed from the road and how complex the device was. Earlier cases have indicated this is a factor in sentencing.While, in the past, protests that have constituted criminal contempt largely people standing passively on the road, 84% of the Fairy Creek accused were using devices of various kinds to make their removal more difficult for police. This has resulted in the Crown seeking jail sentences for many more accused. Many of the accused people have been surprised to learn that they may be facing jail sentences as they were led to believe this wouldn’t be the case. Also on the show, a defamation case, from Port Alberni, is discussed. The case involved the director of a non-profit literacy society defaming two employees of a non-profit society that assists homeless people.After being served with notice of the civil claim, the defendant director only appeared in court briefly, once, and didn’t otherwise show up or hire a lawyer to defend the case. This resulted in a $345,000 judgment.The defendant non-profit society was unsuccessful in its application to set aside the judgment.Follow this link for a transcript of the show and links to the cases discussed.