R. v. Hutchinson (C.J.), (2014) 342 N.S.R.(2d) 348 (SCC)

JudgeMcLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
CourtSupreme Court (Canada)
Case DateMarch 07, 2014
JurisdictionCanada (Federal)
Citations(2014), 342 N.S.R.(2d) 348 (SCC);2014 SCC 19;[2014] 1 SCR 346;[2014] SCJ No 19 (QL)

R. v. Hutchinson (C.J.) (2014), 342 N.S.R.(2d) 348 (SCC);

    1083 A.P.R. 348

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] N.S.R.(2d) TBEd. MR.033

Craig Jaret Hutchinson (appellant) v. Her Majesty The Queen (respondent) and Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario (interveners)

(35176; 2014 SCC 19; 2014 CSC 19)

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

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

March 7, 2014.

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, in a judgment reported (2013), 325 N.S.R.(2d) 95; 1031 A.P.R. 95, 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) of the Criminal Code, so it was unnecessary to decide whether, had C consented, that consent was vitiated by fraud under s. 265(3)(c). 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). The accused appealed his conviction.

The Supreme Court of Canada affirmed the conviction for the reasons stated by Farrar, J.A. The majority of the Court of Appeal erred in finding that the accused was guilty of sexual assault because C did not consent to sexual intercourse. C did consent to sexual intercourse, but that consent was vitiated by the accused's fraud.

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 11

Drafting and interpretation of criminal statutes - General principles - The Supreme Court of Canada stated that "Our jurisprudence has consistently confirmed that in interpreting criminal law provisions, the twin watchwords of restraint and clarity must inform the inquiry. In Cuerrier and Mabior, this Court narrowly limited the sorts of deceptions that vitiate consent in order to create certainty in the law and limit criminal liability to serious, reprehensible conduct. The Court held that deceptions with respect to anything other than the sexual nature of the act or the identity of the partner will only vitiate consent if there is dishonesty which gives rise to a risk of physical harm, beyond the injury inherent in being lied to in order to induce consent. This jurisprudence provides a clear line between criminal and non-criminal conduct and avoids over-criminalization. Adopting the 'essential features' or 'how the physical act was carried out' approach would undercut the important objectives achieved by the Court's jurisprudence. These approaches re-introduce a vague and unclear test for consent and broaden the scope for criminalization, including for HIV non-disclosure, thus effectively reversing this Court's efforts to restrain and clarify the scope of criminalization in those circumstances in Cuerrier and Mabior." - See paragraph 42.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The Supreme Court of Canada stated that "The sexual assault offences invoke the criminal law to protect sexual autonomy. The Criminal Code and jurisprudence establish a high level of protection of the right to choose whether to engage in sexual activity and with whom. The absence of consent to sexual activity, as part of the actus reus of the offence, is judged subjectively from the complainant's point of view: ... Consent cannot be implied, must coincide with the sexual activity, and may be withdrawn at any time. Additionally, no consent is obtained if the apparent agreement to the sexual activity is obtained by coercion, fraud or abuse of authority. ... Individually and collectively, these features of sexual assault law protect Canadians' sexual autonomy." - See paragraph 17.

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 Supreme Court of Canada affirmed the accused's conviction for sexual assault - A two stage analysis applied: (1) did C voluntarily consent to the "sexual activity in question" (Criminal Code, s. 273.1(1)) and (2) if so, were there circumstances vitiating that consent, such as fraud (s. 265(3)(c)) - The first stage required proof that C did not voluntarily agree to the touching, its sexual nature, or the identity of the partner - "Sexual activity in question" was narrowly defined "as the basic physical act agreed to at the time, its sexual nature, and the identity of the partner. If the complainant subjectively agreed to the partner's touching and its sexual nature, voluntary agreement is established" - It did not include the conditions or qualifications of the sexual act - At the second stage, fraud vitiating consent required "deceit and injury, or, expressed differently, dishonesty and deprivation or risk of deprivation. With only two narrow exceptions [nature and quality of the act and the identity of the partner] ... consent will be vitiated by fraud only when consent is obtained by lies or deliberate failure to disclose coupled with a significant risk of serious bodily harm as a result of the sexual touching" - Mistakes on C's part, however caused, in relation to matters such as whether the partner was using effective birth control or had a sexually transmitted disease were not relevant at the first stage - At the second stage, mistakes resulting from deceptions respecting other matters could negate consent under the fraud provision (s. 265(3)(c)) - C subjectively consented to the "sexual activity in question" - However, the accused's deception constituted fraud that vitiated that consent - The court stated that "where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purpose of fraud vitiating consent under s. 265(3)(c)" - The Crown established sufficient deprivation for fraud - See paragraphs 1 to 75.

Words and Phrases

Sexual activity in question - The Supreme Court of Canada discussed the meaning of "sexual activity in question", as found in s. 273.1(1) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraphs 15 to 63.

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. 1].

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. 18].

R. v. Mabior (C.L.), [2012] 2 S.C.R. 584; 434 N.R. 341; 284 Man.R.(2d) 114; 555 W.A.C. 114; 2012 SCC 47, refd to. [para. 18].

R. v. Ewanchuk (S.B.) (1998), 212 A.R. 81; 168 W.A.C. 81; 57 Alta. L.R.(3d) 235; 1998 ABCA 52, refd to. [para. 27].

R. v. Clarence (1888), 22 Q.B.D. 23 (Cr. Cas. Res.), refd to. [para. 30].

R. v. Flattery (1877), 2 Q.B.D. 410 (Cr. Cas. Res.), refd to. [para. 59].

R. v. Dee (1884), 14 L.R. Ir. 468 (Cr. Cas. Res.), refd to. [para. 60].

R. v. G.C. (2010), 266 O.A.C. 299; 2010 ONCA 451, leave to appeal denied (2010), 416 N.R. 390 (S.C.C.), refd to. [para. 63].

R. v. O.A. (2013), 310 O.A.C. 305; 2013 ONCA 581, refd to. [para. 63].

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. 86].

R. v. Chase (1984), 55 N.B.R.(2d) 97; 144 A.P.R. 97 (C.A.), refd to. [para. 99].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 265(1) [para. 7]; sect. 265(3) [para. 11]; sect. 271 [para. 9]; sect. 273.1(1) [para. 10]; sect. 273.1(2) [para. 12].

Authors and Works Noticed:

Canada, Hansard, House of Commons Debates, vol. 9, 3rd Sess., 34th Parl. (June 15, 1992), pp. 12027, 12028, 12041, 12043, 12045 [para. 84].

Falk, Patricia J., Rape by Fraud and Rape by Coercion (1998), 64 Brook L. Rev. 39, pp. 159 to 161 [para. 51].

Feinberg, Joel, Victims' Excuses: The Case of Fraudulently Procured Consent (1986), 96 Ethics 330, generally [para. 51].

Fischer, David A., Fraudulently Induced Consent to Intentional Torts (1977), 46 U. Cin. L. Rev. 71, pp. 79, 87, 98 [para. 51].

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

Hooper, Anthony, Fraud in Assault and Rape (1968), 3 U.B.C. L. Rev. 117, p. 121 [para. 30].

Perkins, Rollin M., and Boyce, Ronald, N., Criminal Law (3rd Ed. 1982), p. 1079 [para. 51].

Puttkammer, E.W., Consent in Rape (1924-25), 19 Ill. L. Rev. 410, p. 423 [para. 51].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 1 [para. 16].

Wertheimer, Alan, Consent to Sexual Relations (2003), generally [para. 18].

Westen, Peter, The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct (2004), p. 198 [para. 51].

Counsel:

Luke A. Craggs, for the appellant;

James A. Gumpert, Q.C., and Timothy S. O'Leary, for the respondent;

Jonathan A. Shime, Wayne Cunningham and Ryan Peck, for the interveners.

Solicitors of Record:

Burke Thompson, Halifax, N.S., for the appellant;

Public Prosecution Service of Nova Scotia, Halifax, N.S., for the respondent;

Cooper, Sandler, Shime & Bergman, Toronto, Ontario; HIV& AIDS Legal Clinic Ontario, Toronto, Ontario, for the interveners.

This appeal was heard on November 8, 2013, before McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada.

On March 7, 2014, the judgment of the Court was delivered in both official languages and the following opinions were filed:

McLachlin, C.J.C., and Cromwell, J. (Rothstein and Wagner, JJ., concurring) - see paragraphs 1 to 75;

Abella and Moldaver, JJ. (Karakatsanis, J., concurring) - see paragraphs 76 to 104.

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