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Michael Mulligan에서 제공하는 콘텐츠입니다. 에피소드, 그래픽, 팟캐스트 설명을 포함한 모든 팟캐스트 콘텐츠는 Michael Mulligan 또는 해당 팟캐스트 플랫폼 파트너가 직접 업로드하고 제공합니다. 누군가가 귀하의 허락 없이 귀하의 저작물을 사용하고 있다고 생각되는 경우 여기에 설명된 절차를 따르실 수 있습니다 https://ko.player.fm/legal.
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No condom = no consent, when lawyers can't quit, and unjust enrichment

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Manage episode 336744957 series 2899369
Michael Mulligan에서 제공하는 콘텐츠입니다. 에피소드, 그래픽, 팟캐스트 설명을 포함한 모든 팟캐스트 콘텐츠는 Michael Mulligan 또는 해당 팟캐스트 플랫폼 파트너가 직접 업로드하고 제공합니다. 누군가가 귀하의 허락 없이 귀하의 저작물을 사용하고 있다고 생각되는 경우 여기에 설명된 절차를 따르실 수 있습니다 https://ko.player.fm/legal.

This week on Legally Speaking with Michael Mulligan:
Section 273.1(1) of the Criminal Code specifies that a person’s voluntary agreement to “engage in the sexual activity in question” is required.
Even where there is consent to sexual activity, it can be legally ineffective in various circumstances, including where the consent is obtained by force, the exercise of authority or fraud.
In 2014, the Supreme Court of Canada decided on a case where an accused secretly sabotaged condoms by poking holes in them. In that case, the sexual activity with the sabotaged condoms was found to have been consented to, however, the consent was ineffective because of fraud.
The Supreme Court of Canada has also found a failure to disclose an HIV infection can amount to fraud when engaging in sexual activity that creates a significant risk of bodily harm.
In the case discussed on the show, the complainant met the accused on a dating app. She indicated in text messages that she only wanted to engage in sexual activity with a condom. After a short meeting, the complaint and accused had sexual intercourse on two occasions.
On the first occasion, the accused used a condom, on the second he did not. The complaint was a willing participant on both occasions; however, she did not realize the accused was not wearing a condom on the second occasion.
The accused didn’t do anything to deceive the complaint on the second occasion: he just didn’t put on a condom.
At trial, the judge applied the earlier Supreme Court of Canada case involving the sabotaged condoms and concluded there was no evidence of fraud.
On appeal, the majority of the Supreme Court of Canada concluded that the “sexual activity in question” which had been consented to was intercourse with a condom and there had been no consent to intercourse without a condom. As a result, a new trial was ordered.
Also on the show, a case dealing with the circumstances a lawyer may not be permitted to quit representing a client is discussed.
There are some circumstances in which a lawyer may quit representing a client, even in the middle of a trial. These would include where a client advises a lawyer that they wish to testify a lie about what happened, or where a lawyer is no longer able to obtain instructions from their client.
Where a lawyer indicates that they wish to quit for ethical reasons a judge is not permitted to make inquiries about this because it might reveal privileged solicitor-client communications.
Where, however, a lawyer wishes to quit representing a client for financial reasons, shortly before a criminal trial, in limited circumstances a judge might require the lawyer to continue. Relevant factors would include whether the accused could represent themselves if another lawyer could assist and if there would be prejudice against others if the trial needed to be adjourned.
In the case discussed, the judge concluded that similar considerations apply to child protection cases, where the government is seeking to apprehend a child.
Because the lawyer was seeking to withdraw because he had lost contact with his client and could not obtain proper instructions there was no basis to require the lawyer to continue with the case.
Finally, on the show, an unsuccessful attempt to claim unjust enrichment by an ex-wife of three years against her former father-in-law on the basis that she claimed to have contributed to paying the mortgage on a house she and her ex-husband had rented from him.
Follow this link for a transcript of the show and links to the cases discussed.

  continue reading

200 에피소드

Artwork
icon공유
 
Manage episode 336744957 series 2899369
Michael Mulligan에서 제공하는 콘텐츠입니다. 에피소드, 그래픽, 팟캐스트 설명을 포함한 모든 팟캐스트 콘텐츠는 Michael Mulligan 또는 해당 팟캐스트 플랫폼 파트너가 직접 업로드하고 제공합니다. 누군가가 귀하의 허락 없이 귀하의 저작물을 사용하고 있다고 생각되는 경우 여기에 설명된 절차를 따르실 수 있습니다 https://ko.player.fm/legal.

This week on Legally Speaking with Michael Mulligan:
Section 273.1(1) of the Criminal Code specifies that a person’s voluntary agreement to “engage in the sexual activity in question” is required.
Even where there is consent to sexual activity, it can be legally ineffective in various circumstances, including where the consent is obtained by force, the exercise of authority or fraud.
In 2014, the Supreme Court of Canada decided on a case where an accused secretly sabotaged condoms by poking holes in them. In that case, the sexual activity with the sabotaged condoms was found to have been consented to, however, the consent was ineffective because of fraud.
The Supreme Court of Canada has also found a failure to disclose an HIV infection can amount to fraud when engaging in sexual activity that creates a significant risk of bodily harm.
In the case discussed on the show, the complainant met the accused on a dating app. She indicated in text messages that she only wanted to engage in sexual activity with a condom. After a short meeting, the complaint and accused had sexual intercourse on two occasions.
On the first occasion, the accused used a condom, on the second he did not. The complaint was a willing participant on both occasions; however, she did not realize the accused was not wearing a condom on the second occasion.
The accused didn’t do anything to deceive the complaint on the second occasion: he just didn’t put on a condom.
At trial, the judge applied the earlier Supreme Court of Canada case involving the sabotaged condoms and concluded there was no evidence of fraud.
On appeal, the majority of the Supreme Court of Canada concluded that the “sexual activity in question” which had been consented to was intercourse with a condom and there had been no consent to intercourse without a condom. As a result, a new trial was ordered.
Also on the show, a case dealing with the circumstances a lawyer may not be permitted to quit representing a client is discussed.
There are some circumstances in which a lawyer may quit representing a client, even in the middle of a trial. These would include where a client advises a lawyer that they wish to testify a lie about what happened, or where a lawyer is no longer able to obtain instructions from their client.
Where a lawyer indicates that they wish to quit for ethical reasons a judge is not permitted to make inquiries about this because it might reveal privileged solicitor-client communications.
Where, however, a lawyer wishes to quit representing a client for financial reasons, shortly before a criminal trial, in limited circumstances a judge might require the lawyer to continue. Relevant factors would include whether the accused could represent themselves if another lawyer could assist and if there would be prejudice against others if the trial needed to be adjourned.
In the case discussed, the judge concluded that similar considerations apply to child protection cases, where the government is seeking to apprehend a child.
Because the lawyer was seeking to withdraw because he had lost contact with his client and could not obtain proper instructions there was no basis to require the lawyer to continue with the case.
Finally, on the show, an unsuccessful attempt to claim unjust enrichment by an ex-wife of three years against her former father-in-law on the basis that she claimed to have contributed to paying the mortgage on a house she and her ex-husband had rented from him.
Follow this link for a transcript of the show and links to the cases discussed.

  continue reading

200 에피소드

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