BC COVID rule challenges dismissed, banishment and double jeopardy, and challenging a civil jury notice

Legally Speaking with Michael Mulligan

This week on Legally Speaking with Michael Mulligan:
Five different legal challenges to COVID-19 restrictions are all dismissed on the same day. Several of the people who launched legal challenges failed to avail themselves of internal legislative review mechanisms before commencing challenges in court.
Before commencing a judicial review, it’s a requirement that someone exhaust legislative avenues to appeal an administrative decision.
Also, on the show, an indigenous man who was sentenced to jail after he plead guilty to burning down a house he owned before he was evicted for failing to pay his mortgage was successful in an application for the appointment of counsel in the Court of Appeal.
In the Court of Appeal, unlike at trial, there is legal authority to appoint a lawyer to help if someone can’t afford to hire a lawyer on their own. Before appointing a lawyer, however, a Court of Appeal judge needs to conclude that the issue being raised has some merit.
In the case discussed, the indigenous appellant had been banished from the reserve he lived on for six months prior to being convicted. The banishment was pursuant to authority delegated by the federal government that permitted the band council to banish someone charged with a criminal offence.
The man is arguing that sentencing him to jail following the banishment amounted to double jeopardy.
Section 11 (h) of the Charter says that “if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again”
Not every corollary consequence of a criminal offence will constitute punishment for the purpose of 11 (h) of the Charter. For example, being fired from your job would not amount to a punishment for the purpose of this section.
The Court of Appeal judge hearing the application for the appointment of counsel found that banishment was a punishment that had traditionally been used for criminal offences. As a result, they concluded that the ground of appeal had merit and ordered that a lawyer be appointed to argue the appeal for the man.
Finally, on the show, the process for requesting a jury in a civil case and applying to cancel a request for a jury is discussed.
Where either the plaintiff or defendant files a notice to have a jury trial, the other party can oppose it on various grounds, including the complexity or length of a case.
In the case discussed, the issue was whether an insurance policy covered damage to the engine of a fishing boat. The insurance company wanted a jury trial, while the boat owner opposed it. The judge concluded that the case concluded that there was no reason a jury couldn’t decide the case.
Follow this link for a transcript of the show and links to the cases discussed.