No condom = no consent, when lawyers can’t quit, and unjust enrichment
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.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.
An automated transcript of the show:
Legally Speaking Aug 4, 2022
Adam Stirling [00:00:00] Time for our weekly conversation with Barrister and Solicitor with Mulligan Defence Lawyers. Legally Speaking, Michael Mulligan joining us. Morning, Michael. How are we doing?
Michael T. Mulligan [00:00:08] Good morning. I’m doing great. Always good to be here.
Adam Stirling [00:00:10] Interesting topics on the agenda today, including one that has to do with, I know that there was a recent finding by the Supreme Court of Canada on this general issue; and you’re going to help us understand this in terms of consent to sexual activity and the wearing of a condom.
Michael T. Mulligan [00:00:26] Yes, indeed. And this is a case that just came out from the Supreme Court of Canada, and it falls on a couple of other cases over the years that deal with this concept of what is consent to sexual activity and when can that consent be initiated by fraud. And the starting point is that sexual activity requires a person to consent, in advance, to engage and the language is, sexual activity in question. But like most human affairs, a phrase that might sound clear when you first read it, quickly winds up muddied when you get into the weeds. And the recent fact pattern that the Supreme Court of Canada just dealt with, was a woman who met a man online, one of those online dating sites or apps. Met spent a couple of hours they seemed compatible, and they went off to engage in sexual activity. During that conversation, they talked about her always wanting to use a condom, or at least that’s what she expressed in some text messages with this fellow. They engage sexual activity, which she consented to, condom was used later in the evening, they engaged in sexual activity, which she appeared to consent to in a physical way. But it turned out a condom was not used. And on that fact pattern, the man was charged with sexual assault. And at his trial, this was all in British Columbia. There was an application brought after that evidence was led for what’s called a no evidence motion, saying the Crown hadn’t established some evidence of all the elements of the offence. And the judge in that case was applying an earlier Supreme Court of Canada case, which also dealt with concept of consent in that case. What happened is that the man had poked holes in condoms that were used, and it resulted in his partner becoming pregnant. And the way the Supreme Court of Canada dealt with that earlier case with the condoms with holes poked in them.
Adam Stirling [00:02:41] mm-hmm.
Michael T. Mulligan [00:02:41] Is that they used a provision of the code dealing with consent that says that consent can be initiated, it doesn’t mean that it’s actual legal consent if there was fraud. And in that case, the Supreme Court of Canada found that the person had, the woman had consented to the sexual activity in question, but the fraud of him deceptively sabotaging the condoms meant that the consent didn’t count. And so, there was a conviction, but it was premised on that idea of what was physically happen was consented to, but fraud meant that it didn’t count. So, the judge in the current case found that there was no evidence of fraud.
Adam Stirling [00:03:30] hmm.
Michael T. Mulligan [00:03:30] The man hadn’t secretly done something or lied to her. He just didn’t use a condom. And otherwise, what happened was entirely consensual. And so the judge said, well, look, I’m applying this earlier trial judge, earlier Supreme Court of Canada case, also dealing with condoms and saying, well, that case, the Supreme Court of Canada dealt with it by finding, yes, the activity in question was agreed to, there was consent, tick, but there was fraud. So, it didn’t count. But in the current case, the trial judge said, well, I don’t see any evidence of fraud. He didn’t say anything to her. He didn’t claim he was using one when he wasn’t. It’s just that she had earlier said, I always want to use a condom. That’s what I’m agreeing to. Now that this fact better than go all the way to the Supreme Court of Canada and the Supreme Court of Canada in this case took a different approach to it. And the Supreme Court found that the meaning of sexual activity in question, does include the concept of sexual activity while, using a condom. And therefore, it wasn’t necessary for there to be an assessment as to whether the other person had engaged in fraud, because all of the elements of fraud didn’t seem to be present.
Adam Stirling [00:04:47] hmm.
Michael T. Mulligan [00:04:47] And so the result now from the Supreme Court of Canada is that sexual activity in question is being defined in a broader way to include that concept of using a condom. So because there has to be prior consent, it’s got to be expressed where you’ve got prior consent, and it’s clear that the consent is only to engage in some activity using a condom, if one is not used there doesn’t need to be an assessment as to whether there is fraud and therefore there could be a conviction where one isn’t used. The other sort of analogous fact pattern which the Supreme Court of Canada also had to struggle with, in the past, using the same sections and the language.
Adam Stirling [00:05:32] mm-hmm.
Michael T. Mulligan [00:05:32] Is what happens if somebody doesn’t disclose their HIV status?
Adam Stirling [00:05:35] Yes.
Michael T. Mulligan [00:05:36] And engages in activity. Is there consent? And the Supreme Court of Canada has found that where there is a failure to disclose that and where there’s a realistic risk of endangering the other person, like a condom was not used, or circumstances where there can be a realistic risk of danger transmission. Again, there isn’t consent. And so, we’ve had over the years, I’ve said it was over a hundred people who have been convicted of sexual assault for failing to disclose their HIV status. The idea is that that wasn’t what the other person agreed to. But obviously, these are muddy waters, right?
Adam Stirling [00:06:20] Yeah.
Michael T. Mulligan [00:06:20] Because when we’re talking about this concept of consent, what if the woman claimed to have been using birth control but wasn’t?
Adam Stirling [00:06:28] Yeah.
Michael T. Mulligan [00:06:29] Does that mean there’s no consent,
Adam Stirling [00:06:30] Yeah.
Michael T. Mulligan [00:06:30] Does that mean she’s guilty of sexual assault?
Adam Stirling [00:06:33] Hmm.
Michael T. Mulligan [00:06:33] And so I don’t think this area of the law is going to be settled for some time. But those are the terms that the Supreme Court of Canada and other courts have had to deal with. Right. Because, of course, you know, the courts are trying to interpret what did parliament mean when it says, right, there must be voluntary agreement to, “engage the sexual activity in question”. What is that? Does that mean the condom use doesn’t mean you were, in fact, using birth control? What about the disclosure of other medical conditions? What if somebody doesn’t disclose that they have Covid and engage in activity? Does that mean there was no consent to it. That might be a way you could transmit it. close contact.
Adam Stirling [00:07:19] Yeah.
Michael T. Mulligan [00:07:19] So how far does that go? And these are kind of challenges, of course, the courts have to deal with every day. Because even when you look at language, that seems kind of clear when you first read it for it or somebody said, well, here’s a provision you need to have prior consent to, “engage in the sexual activity” in question. You know, without thinking about all of these odd scenarios, I think a lot of people might look at it and say oh yes, I understand what that means to the other person say yes, they wish to do this.
Adam Stirling [00:07:46] Yeah.
Michael T. Mulligan [00:07:48] But these are the kinds of human wrinkles that make the law challenging and interesting. When you have to sort out those subtleties, you know, what do we do when the person is said, oh, yes, and is enthusiastic participant in the physical activity; but, you know, they were misled about somebody’s medical status or the use of birth control or whatever it might be. How does that fit in to that question? And so, we have one more answer to that. And so, the result from the Supreme Court of Canada decision will mean that in the particular case, which is from British Columbia, there will now presumptively be a trial to determine whether the person is guilty or not of sexual assault. Bearing in mind what the Supreme Court of Canada has said about what it means to consent to the sexual activity in question. And it’s a bit of a different approach than we took with the last condom case, so we’ll have to look and see how that plays out.
Adam Stirling [00:08:49] All right. Legally speaking here on CFAX 1070, I think that’s a good opportunity to take our first break. We’ll be back right after this.
Adam Stirling [00:08:56] All right. Legally speaking, continues Michael Mulligan with Mulligan Defence Lawyers. Where were we, Michael?
Michael T. Mulligan [00:09:01] Well, the next case on the agenda deals with the issue of lawyers quitting, essentially, prior to a trial or during a trial even. And the background of it is that a few years ago, the Supreme Court of Canada came out with a decision that concluded that there were some circumstances in which a lawyer may not be permitted to quit or withdraw from a criminal case. And examples of that, or the principal reason for that might be financial reasons, and let’s say a lawyer hasn’t been paid to conduct a trial. And then a very short time before the trial, the lawyer says, look, I just want to quit. I haven’t been paid. The Supreme Court of Canada has said that there are some limited circumstances where the court could refuse to let the lawyer quit. They would look at things like, could the person represent themselves? Could they get another lawyer to help them? Would there be some serious prejudice to let’s say a co-accused say you had two people charged with something, and if one lawyer quips, the other person’s going to have to remain in jail, while the first one gets a new lawyer, or some other prejudice. But the Supreme Court of Canada also found that there are other circumstances in which a lawyer has an absolute right to withdraw, and a court can’t ask any questions about it.
Adam Stirling [00:10:24] hmm.
Michael T. Mulligan [00:10:24] For example, for ethical reasons, one of those that can arise is a lawyer has an ethical obligation not to have a client perjure themselves. Right.
Adam Stirling [00:10:35] Yeah.
Michael T. Mulligan [00:10:36] You know, if a client is still their lawyer in a criminal case, I rob the bank, but I’m going to get up there and blame it on Bob. That’s what I want to do.
Adam Stirling [00:10:43] Yeah.
Michael T. Mulligan [00:10:43] The lawyer cannot participate in that.
Adam Stirling [00:10:45] I see.
Michael T. Mulligan [00:10:46] And the lawyer would say, look, I quit and that could be right in the middle of the trial. I’m not participating in somebody who’s going to lie. Or there could be other problems. Like, let’s say, for example, in the case that we’re going to talk about, there can be a circumstance where the lawyer can’t get instructions from a client just to be able to respond. Right. The lawyer’s calling and e-mailing, writing, what do you want to do? What do you want to do?
Adam Stirling [00:11:10] Yeah.
Michael T. Mulligan [00:11:11] The client just has fallen off the map and won’t provide proper instructions. Again, the lawyer could well withdraw because how are they supposed to continue? They don’t know what the person wants to do. And if a lawyer’s withdrawing or quitting for those kinds of reasons, a court or judge has no authority to ask anything about it. The lawyer could just say I’m withdrawing practical reasons. That’s it. Otherwise, it might, for example, reveal, you know, the contents of solicitor client privilege conversations. For example, somebody saying, I want to lie about Bob robbing the bed. Right.
Adam Stirling [00:11:46] Yeah.
Michael T. Mulligan [00:11:47] So that’s why a judge cannot ask to go to a lawyer. This is for ethical reasons, but the case in question involves, interestingly, not a criminal case, but instead a child apprehension case. That would be a case where the provincial director of child protection is looking to apprehend children, take them away from a parent. And it’s a case where there been a long, complex history and there was a trial scheduled. And the lawyer who was acting for one of the parents advised the court, I can’t get instructions. I need to withdraw. And so, the provincial lawyer was trying to get the judge to not let the lawyer quit because they didn’t want the case getting put off because they were kids involved and it had been outstanding for a long time. And so, they went to court, and they tried to persuade the judge not to allow the lawyer who was acting for one of the parents to withdraw because of the prejudice it would have on, you know, the kids. But ultimately, the judge found that, while those principals involved in criminal cases do apply in child protection pieces, some of those interests, like could the person represent themselves, could be another counsel. It would have prejudiced other people. All those are legitimate things to inquire about where a lawyer is withdrawing for financial reasons, person hasn’t paid their bill. But here the reason the lawyer was looking to withdraw is that they were simply unable to get proper instructions from their client. They had been writing, emailing, and calling and the person had just stopped responding to the lawyer for whatever reason. And so, the lawyer wasn’t able to prepare for the trial. And even though shortly before this application to try to force the lawyer to continue, they’ve finally gotten a hold of the client. They still weren’t responding with any meaningful instructions. And so, the judge found that in those circumstances, the judge had no authority to require the lawyer to continue. What does that possibly look like?
Adam Stirling [00:13:58] Yeah.
Michael T. Mulligan [00:13:58] And so despite those efforts, the lawyer was perfectly permitted to withdraw. And the Supreme Court of Canada has made clear as well, that judges are required to simply take at face value what the lawyer is telling them about why they are withdrawing. The lawyer stands up as a I have an ethical issue. I must withdraw. A judge can’t be prying into that saying, well, what did your client tell you? What are they planning to do?
Adam Stirling [00:14:26] Yeah.
Michael T. Mulligan [00:14:26] For pretty obvious reasons. And so that’s the state of the law. There are these restrictions on lawyers withdrawing that would apply both to criminal and child protection matters, but only in circumstances where the reason for withdrawal is not ethical but financial, and where a series of criteria would be laid out. And as a practical matter, this is why virtually any lawyer who you’d want to have acting for you would ordinarily require a person to put into trust, to pay into the lawyers trust account, the fees that would be expected to conduct the trial well in advance of the trial, so that if a person decided they didn’t want to or couldn’t pay the fees, the lawyer would be in a position to withdraw in a timely way so that court time wouldn’t be wasted and nobody would be prejudiced, and the person could then make other arrangements for a lawyer. And so all of this is perhaps an explanation for people as to why lawyers would invariably require fees to be put into trust well before a trial, so that a lawyer could meet their obligations to the court and to co-accused and others and not be in a circumstance where they’re standing in court a week before a complicated trial saying, I have to quit. The person hasn’t paid.
Adam Stirling [00:15:54] Yeah.
Michael T. Mulligan [00:15:54] Because there may be circumstances where that just doesn’t work. So that’s the way this sort of when lawyers conflict when it applies and when questions can be asked about us and simply when they cannot.
Adam Stirling [00:16:04] All right. We’ve got 6 minutes and 20 seconds left and one perhaps complicated story, but I’m sure we can get through it.
Michael T. Mulligan [00:16:11] Yeah, I think we can probably summarize this one. This is a decision of the BC Court of Appeal, and it involves the concept of unjust enrichment. And the fact pattern was a man and woman over in the lower mainland got married and the wound up renting a house from the husband’s father-in-law. Husbands, father. The father-in-law of the person claiming unjust enrichment. They rented this house for three years from the father-in-law. And then the marriage broke down and they separated. And what happened was that the former wife tried to make a claim that the father, her ex-father-in-law, had been what’s called unjustly enriched by her contributions to the home over that three-year period of time when she lived there with her ex-husband. And there can be principles where that concept does apply. Like, let’s say, for example, you had two people who lived together and shared the cost of a mortgage for a period of time. Right. Without any kind of a written agreement. And then the relationship broke down. You could well have a circumstance where a court would find that the person who was nominally listed as the owner of the house would be required to pay some compensation to the other person who helped pay the mortgage. Right. The ideas hey it wasn’t the concept that you would just get the benefit of a bunch of mortgage payments for ten years. Right. And so that’s what in this case, the ex-wife was alleging, she was claiming that she had contributed to the maintenance of the house and had contributed to payments that her ex-father-in-law had made. And she was therefore claiming that there was this concept of unjust enrichment. Now, that did not succeed either at the trial or ultimately in the Court of Appeal. And the reason for that has to do with how that concept of unjust enrichment, which is an equitable concept, works when there is a contract in place. Some of those equitable principles have been developed with unjust enrichment over the years by courts to achieve fairness, basically, where there is no contract or agreement in place. But in this particular case, there was a rental agreement in place between the couple and the father of the husband, father-in-law of the person who was making this claim for unjust enrichment. And the law is such that those equitable principles like unjust enrichment may not apply where there is a sort of a legal contract in place setting out what the nature of this agreement was. And here there was a rental agreement where there was rent paid to the father/father-in-law for the home. And as a result of that, both the trial judge and then ultimately the Court of Appeal found that that prevented this kind of an equitable claim being made the unjust enrichment claim. And there is an important takeaway for people from all of this when there are these kinds of arrangements put in place. I don’t think this would be necessarily a strange or unique circumstance. Where you’ve got parents who appear to be trying to help out their son and daughter in law because in this case, they were paying them rent, which is well below what market rent would have been for a similar home. And the important takeaway from this case is just how important it is to make sure that what’s going on is properly documented. In this case, there was a tenancy agreement. And so, on that basis, this claim for unjust enrichment was unsuccessful. But it’s likely that or at least entirely possible, that if you had a similar circumstance with parents trying to help out their son and daughter in law, had they not created the rental agreement so it was clear that they were paying rent and not, you know, helping to pay the mortgage, for example, there could well have been a different outcome. And so, once again, in life, this is an example of where you will do everyone a favour. If you make clear at the outset what a particular arrangement is, let there be a decision later that might not be in accordance with what anyone had in mind, at least at the outset. So once again, the legal advice would be get it in writing to avoid discontent and argument later.
Adam Stirling [00:21:23] Michael Mulligan with Mulligan Defence Lawyers, Legally Speaking, during the second half of our second hour every Thursday here on CFAX 1070. Thank you as always, Michael, until next week.
Michael T. Mulligan [00:21:32] Thank you so much. Have a great day.
Adam Stirling [00:21:33] All right. You too. Bye now.
Automatically Transcribed on August 12, 2022 – MULLIGAN DEFENCE LAWYERS