R. v. Hutchinson (C.), (2010) 286 N.S.R.(2d) 331 (CA)

• Judge: Roscoe, Bateman and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 20, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 286 N.S.R.(2d) 331 (CA);2010 NSCA 3

R. v. Hutchinson (C.) (2010), 286 N.S.R.(2d) 331 (CA);

    909 A.P.R. 331

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. JA.031

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

(CAC 307320; 2010 NSCA 3)

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

Nova Scotia Court of Appeal

Roscoe, Bateman and Beveridge, JJ.A.

January 20, 2010.

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, 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.

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 - [See Criminal Law - Topic 670.2 ].

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused and C had an intimate relationship, using condoms during sexual intercourse to prevent pregnancy - The accused deceived C by puncturing condoms to get her pregnant - C became pregnant and obtained an abortion - The accused was charged with aggravated sexual assault - The trial judge directed a verdict of acquittal, rejecting the Crown's submission that C's consent was vitiated by fraud through the accused's deceitful use of sabotaged condoms - Vitiation of consent required a "significant risk of serious harm" to C - Pregnancy and abortion did not create a "significant risk of serious harm" - The risks were "remote" - C's consent to sex was not negated by the fact that she consented only to protected sex - Consent went to the application of force, not to the terms and conditions placed on such sexual touching - The Nova Scotia Court of Appeal ordered a new trial - Section 265 of the Criminal Code provided that consent was vitiated by fraud and s. 273.1 provided that consent meant "the voluntary agreement of the complainant to engage in the sexual activity in question" - Consent was vitiated if the deceitful conduct resulted in actual or significant risk of serious harm to C - There was evidence upon which a jury could find that the deceitful conduct caused serious bodily harm to C, vitiating her consent - Further, under s. 273.1, there was evidence upon which a jury could find that the use of sabotaged condoms endangered C's life and that C's consent to "the sexual activity in question" (i.e., protected sexual intercourse) did not constitute consent to unprotected sexual intercourse - Beveridge, J.A., dissenting, opined that consent to "the sexual activity in question" under s. 273.1 did not require "informed consent", it simply meant consent to the sexual activity in question, being sexual intercourse - Beveridge, J.A., stated that "it has never been suggested that a lie about the use of contraceptives or having been vasectomized is a matter for the criminal law".

Cases Noticed:

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. 15].

R. v. Monteleone, [1987] 2 S.C.R. 154; 78 N.R. 377; 23 O.A.C. 241, refd to. [para. 24].

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. 29].

R. v. Ashlee (G.A.) et al. (2006), 391 A.R. 62; 377 W.A.C. 62; 2006 ABCA 244, leave to appeal denied (2006), 363 N.R. 393; 412 A.R. 396; 404 W.A.C. 396 (S.C.C.), refd to. [para. 35].

Saint Laurent v. Hétu (Juge) et al. (1993), 90 C.C.C.(3d) 291 (Que. C.A.), leave to appeal refused (1994), 175 N.R. 240 (S.C.C.), refd to. [para. 36].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 45].

R. v. Williams (H.L.) (2003), 308 N.R. 235; 231 Nfld. & P.E.I.R. 1; 686 A.P.R. 1; 2003 SCC 41, refd to. [para. 51].

R. v. Palombi (K.) (2007), 225 O.A.C. 264; 2007 ONCA 486, refd to. [para. 51].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 88].

R. v. Day (1841), 9 Car. & P. 722; 173 E.R. 1026, refd to. [para. 89].

R. v. Olugboja, [1981] 3 W.L.R. 585 (C.A.), refd to. [para. 90].

R. v. Swietlinski, [1980] 2 S.C.R. 956; 34 N.R. 569, refd to. [para. 95].

R. v. Esau (A.J.), [1997] 2 S.C.R. 777; 214 N.R. 241, refd to. [para. 99].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 103].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 104].

Castillo v. Castillo, [2005] 3 S.C.R. 870; 343 N.R. 144; 376 A.R. 224; 360 W.A.C. 224, refd to. [para. 104].

R. v. Ewanchuk (S.B.) (1998), 212 A.R. 81; 168 W.A.C. 81; 1998 ABCA 52, refd to. [para. 115].

R. v. Guerrero (1988), 27 O.A.C. 244 (C.A.), refd to. [para. 118].

R. v. Davis (G.N.), [1999] 3 S.C.R. 759; 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78, refd to. [para. 119].

R. v. Stender (D.G.) (2004), 190 O.A.C. 127; 188 C.C.C.(3d) 514 (C.A.), affd. (2005), 336 N.R. 21; 201 O.A.C. 136 (S.C.C.), refd to. [paras. 120, 121].

R. v. Petrozzi (1987), 35 C.C.C.(3d) 528 (B.C.C.A.), refd to. [para. 127].

R. v. Bennett (1866), 4 F. & F. 1105; 176 E.R. 925, refd to. [para. 130].

R. v. Sinclair (1867), 13 Cox C.C. 28, refd to. [para. 131].

R. v. Clarence (1888), 22 Q.B.D. 23, refd to. [para. 132].

R. v. R., [1992] 1 A.C. 599 (H.L.), refd to. [para. 133, footnote 2].

R. v. Case (1850), 4 Cox C.C. 220, refd to. [para. 142].

R. v. Flattery (1877), 2 Q.B.D. 410 (C.R.R.), refd to. [para. 142].

R. v. Williams, [1923] 1 K.B.D. 340, refd to. [para. 142].

R. v. Harms, [1944] 2 D.L.R. 61 (Sask. C.A.), refd to. [para. 142].

R. v. Maurantonio, [1968] 1 O.R. 145 (C.A.), refd to. [para. 142].

R. v. Dica, [2004] 3 All E.R. 593; [2004] EWCA Crim. 1103, refd to. [para. 146, footnote 3].

S.K. v. R.L. (1980), 105 Cal. App.3d 640, refd to. [para. 158].

B.A. v. J.G. (1983), 145 Cal. App.3d 369, refd to. [para. 158].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(3) [para. 32]; sect. 273(1) [para. 25]; sect. 273.1 [para. 33].

Authors and Works Noticed:

Boyle, Christine, Sexual Assault (1994), generally [para. 97, footnote 1].

Bryant, Alan W., The Issue of Consent in the Crime of Sexual Assault (1989), 68 Can. Bar Rev. 94, generally [para. 92].

Canada, Hansard, House of Commons Debates (April 8, 1992), vol. 7, p. 9507 [para. 114].

Driedger, Elmer A., Construction of Statutes (1st Ed. 1974), p. 67 [para. 102].

Hansard - see Canada, Hansard, House of Commons Debates.

McIntyre, Sheila, Redefining Reformism: The Consultations that Shaped Bill C-49, in Roberts, Julian V., and Mohr, Renate M., Confronting Sexual Assault: A Decade of Legal and Social Change (1994), p. 301 [para. 112].

Roberts, Julian V., and Mohr, Renate M., Confronting Sexual Assault: A Decade of Legal and Social Change (1994), p. 301 [para. 112].

Smith, John Cyril, and Hogan, Brian, Criminal Law (6th Ed. 1988), p. 434 [para. 91].

Watt, David, The New Offences Against the Person: The Provisions of Bill C-127 (1984), generally [para. 97, footnote 1].

Watt, David, Manual of Criminal Jury Instructions (2005), pp. 408 to 411 [para. 28].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 554 [para. 91].

Counsel:

Peter P. Rosinski, for the appellant;

Respondent, on his own behalf.

This appeal was heard on September 29, 2009, at Halifax, N.S., before Roscoe, Bateman and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On January 20, 2010, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Roscoe, J.A. - see paragraphs 1 to 55;

Beveridge, J.A., dissenting - see paragraphs 56 to 163;

Bateman, J.A. - see paragraphs 164 to 172.