R. v. Hutchinson (C.J.), (2013) 325 N.S.R.(2d) 95 (CA)

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: MacDonald, C.J.N.S., Oland, Hamilton, Fichaud and Farrar, JJ.A.
• Citation: (2013), 325 N.S.R.(2d) 95 (CA),2013 NSCA 1
• Date: 03 January 2013

R. v. Hutchinson (C.J.) (2013), 325 N.S.R.(2d) 95 (CA);

    1031 A.P.R. 95

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. JA.003

Craig Jaret Hutchinson (appellant) v. Her Majesty The Queen (respondent)

(CAC 370497; 2013 NSCA 1)

Indexed As: R. v. Hutchinson (C.J.)

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Oland, Hamilton, Fichaud and Farrar, JJ.A.

January 3, 2013.

Summary:

The accused and C had an intimate relationship involving the use of condoms during sexual intercourse to prevent pregnancy. The accused deceived C by surreptitiously sabotaging condoms (put holes in them) in a deliberate strategy to get C pregnant. C became pregnant and obtained an abortion. The accused was charged with aggravated sexual assault. At the preliminary hearing, the accused conceded that the law criminalized sex obtained by an HIV positive accused through deceit about his HIV status (R. v. Cuerrier (S.C.C.)), but argued that Cuerrier could not be extended to criminalize deceit related to contraceptive protection leading to pregnancy. Alternatively, if consent was vitiated by such deceit, the accused argued that there was no evidence to support a finding of aggravated assault where his conduct did not wound, maim, disfigure or endanger the life of C.

The Nova Scotia Provincial Court, in a judgment reported (2008), 273 N.S.R.(2d) 1; 872 A.P.R. 1, committed the accused to stand trial. A reasonable jury, properly instructed, could find that the criminal law encompassed the accused's conduct and could find the accused guilty of aggravated sexual assault. At trial, after the conclusion of the Crown's case, the accused applied for a directed verdict of acquittal.

The Nova Scotia Supreme Court, in a judgment reported (2009), 275 N.S.R.(2d) 128; 877 A.P.R. 128, allowed the application and directed a verdict of acquittal. A trier of fact could not conclude that C's consent was vitiated by fraud because there was no evidence of a significant risk of serious bodily harm. Although the accused's conduct was "fraudulent" and "dastardly", there was no sexual assault. The Crown appealed.

The Nova Scotia Court of Appeal, Beveridge, J.A., dissenting, in a judgment reported (2010), 286 N.S.R.(2d) 331; 909 A.P.R. 331, allowed the appeal and ordered a new trial. A properly instructed jury could find that there was no consent to unprotected sexual intercourse or, alternatively, that consent was vitiated by fraud. There was evidence of serious bodily harm to C and evidence upon which a jury could find that the element of endangerment of life was established.

The Nova Scotia Supreme Court, in a judgment reported (2011), 311 N.S.R.(2d) 1; 985 A.P.R. 1, acquitted the accused of aggravated assault, but found him guilty of sexual assault for having non-consensual sexual intercourse with C.

The Nova Scotia Supreme Court, in a judgment reported (2011), 310 N.S.R.(2d) 207; 983 A.P.R. 207, sentenced the accused to 18 months' imprisonment. The accused appealed against conviction and sentence.

The Nova Scotia Court of Appeal dismissed the appeal against conviction and sentence. C consented to sexual intercourse, but not unprotected sexual intercourse. There was no consent under s. 273.1(1), so it was unnecessary to decide whether, had C consented, that consent was vitiated by fraud under s. 273.1(1). Farrar, J.A., dissenting, would have allowed the conviction appeal and ordered a new trial on the ground that C consented to sexual intercourse (s. 273.1(1)), requiring a determination at trial as to whether that consent was vitiated by fraud under s. 265(3)(c).

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The Nova Scotia Court of Appeal stated that "consent commands 'active actual consent throughout every phase of the sexual activity'" - See paragraph 37.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - [See Criminal Law - Topic 670 ].

Criminal Law - Topic 670

Sexual offences - Rape or sexual assault - Sexual assault defined - The accused and C had an intimate relationship involving the use of condoms during sexual intercourse to prevent pregnancy - The accused deceived C by surreptitiously sabotaging condoms (put holes in them) in a deliberate strategy to get C pregnant to save their failing relationship - C became pregnant and obtained an abortion - The accused was convicted of sexual assault - Sexual intercourse with a sabotaged condom, knowing that C would not consent to unprotected sexual intercourse, constituted a sexual assault - The Nova Scotia Court of Appeal affirmed the conviction - The court stated that "if there is no consent to an essential feature of the sexual act itself, there can be no consent to 'the sexual activity in question' pursuant to s. 273.1" - It was unnecessary to consider whether C's consent was vitiated by fraud (s. 265(3)), because she consented only to protected sexual intercourse, not sexual intercourse with a sabotaged condom - The court stated that "I respectfully disagree that the 'sexual activity in question' under s. 273.1(1) may be legally defined in advance as restricted only to the ultimate vaginal penetration, without regard to the evidence, in the particular case, respecting any other features of the sexual activity that were essential to the complainant's subjective consent"- The accused's "wearing of an unsabotaged condom during intercourse was an essential feature of his activity with [C]. [C] did not consent, within s. 273.1(1), to sexual intercourse with perforated condoms." - See paragraphs 1 to 84.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5932 ].

Criminal Law - Topic 5932

Sentence - Sexual assault - The 41 year old accused and C had an intimate relationship - C consented to sexual intercourse only if the accused used condoms to prevent her from becoming pregnant - The accused deceived C by puncturing condoms to get her pregnant - C became pregnant and obtained an abortion - The accused was found guilty of sexual assault under s. 273.1 of the Criminal Code, because C consented to protected sexual intercourse, not unprotected sexual intercourse, which subjected C to an actual or significant risk of serious harm (i.e., pregnancy and abortion) - The accused sought a suspended sentence or a conditional sentence - The accused was not remorseful and appeared not to understand the gravity of what he did - He had no prior criminal record and had been continuously employed as a chef for the same employer for 22 years - Aggravating factors included the premeditated conduct and the breach of trust that existed in a relationship - The trial judge held that a conditional sentence would be inappropriate, as it would be inconsistent with the fundamental purposes and principles of sentencing - Particularly, the need to express society's condemnation of such conduct required a period of incarceration - The judge sentenced the accused to 18 months' imprisonment - The Nova Scotia Court of Appeal dismissed the accused's sentence appeal, stating that "the judge exercised his discretion by ordering an 18-month jail term. In doing so, he neither erred in principle nor issued a disposition that was demonstrably unfit." - See paragraphs 85 to 88.

Cases Noticed:

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 18].

R. v. Cuerrier (H.G.), [1998] 2 S.C.R. 371; 229 N.R. 279; 111 B.C.A.C. 1; 181 W.A.C. 1, refd to. [para. 25].

R. v. G.C. (2010), 266 O.A.C. 299; 2010 ONCA 451, leave to appeal refused (2010), 416 N.R. 390 (S.C.C.), refd to. [para. 29].

R. v. Crangle - see R. v. G.C.

R. v. J.A., [2011] 2 S.C.R. 440; 417 N.R. 1; 279 O.A.C. 1; 2011 SCC 28, refd to. [para. 29].

R. v. Mabior (2012), 434 N.R. 431; 284 Man.R.(2d) 114; 555 W.A.C. 114; 2012 SCC 47, refd to. [para. 29].

R. v. Stender (D.G.) (2004), 190 O.A.C. 127; 188 C.C.C.(3d) 514 (C.A.), affd. [2005] 1 S.C.R. 914; 336 N.R. 21; 201 O.A.C. 136; 2005 SCC 36, refd to. [para. 62].

R. v. D.S. - see R. v. Stender (D.G.).

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161 (S.C.C.), refd to. [para. 87].

R. v. Olugboja, [1981] 3 W.L.R. 585 (Eng. C.A.), refd to. [para. 94].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 102].

R. v. Sharpe (J.R.) (2001), 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 125].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 154].

R. v. Ruzic (M.), [2001] 1 S.C.R. 687; 268 N.R. 1; 145 O.A.C. 235; 2001 SCC 24, refd to. [para. 154].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 203].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1985, c. C-46, sect. 265(1), sect. 265(2) [para. 16]; sect. 265(3) [para. 17]; sect. 273.1(1) [para. 19]; sect. 273.1(2) [para. 20].

Authors and Works Noticed:

Benedet, Janine, and Grant, Isabel, Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity and Mistaken Belief (2007), 52 McGill L.J. 243, p. 284 [para. 163].

Coughlan, Steve, Annotation to R. v. Hutchinson, 2010 CarswellNS 17, p. 17 [para. 62].

Grant, Isabel, The Boundaries of the Criminal Law: the Criminalization of the Non-disclosure of HIV (2008), 31 Dal. L.J. 133, generally [para. 187].

Manning, Morris, and Sankoff, Peter, Manning, Mewett & Sankoff: Criminal Law (4th Ed. 2009), pp. 804 [para. 108]; 879 [para. 175].

Stewart, Hamish, When Does Fraud Vitiate Consent? A Comment on R. v. Williams (2004), 49 Crim. L.Q. 144, p. 147 [para. 106].

Wertheimer, Alan, What is Consent? and Is It Important? (1999-2000), 3 Buff. Crim. L. Rev. 557, pp. 561, 562 [para. 95].

Counsel:

Luke A. Craggs, for the appellant;

James A. Gumpert, Q.C., and Kimberley McOnie, for the respondent.

This appeal was heard on June 4, 2012, at Halifax, N.S., before MacDonald, C.J.N.S., Oland, Hamilton, Fichaud and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On January 3, 2013, the judgment of the Court of Appeal was delivered and the following opinions were filed:

MacDonald, C.J.N.S. (Oland, Hamilton and Fichaud, JJ.A., concurring) - see paragraphs 1 to 89;

Farrar, J.A., dissenting - see paragraphs 90 to 225.