R. v. Hutchinson, 2013 NSCA 1

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Hutchinson , 2013 NSCA 1 Date: 20130103 Docket: CAC 370497 Registry: Halifax Between: Craig Jaret Hutchinson Appellant v. Her Majesty The Queen Respondent Restriction on publication:

Section 486.4(1) of the Criminal Code of Canada JUDGE : MacDonald, C.J.N.S. Farrar, J.A. (Dissenting) APPEAL HEARD : June 4, 2012, in Halifax, Nova Scotia SUBJECT : Criminal Law; sexual assault; consent; meaning of “ sexual activity in question ” - s. 293.1(1) of the Criminal Code ; principles of sentencing

SUMMARY : The appellant tried to trick his partner into becoming pregnant by poking holes in the condoms they used during intercourse. He knew full well that she did not want to become pregnant. In fact, she insisted on him wearing the condoms for that very reason. For these actions, the appellant was charged with sexual assault. Pursuant to s. 273.1(1) of the Criminal Code , the Crown had to prove that the Complainant did not consent to the “ sexual activity in question ” .

At trial, the issue involved whether, for the purposes of s. 273.1(1), the “ sexual activity in question ” was simply sexual intercourse (which was consented to and therefore would have lead to an acquittal) or unprotected sexual intercourse which was not consented to. The trial judge chose the latter and convicted the appellant. He was sentenced to 18 months in jail . ISSUE: The appellant challenges both the conviction and the sentence.

RESULT : MacDonald, C.J.N.S.: (for the majority) The judge was correct to conclude that the “ sexual activity in question ” [as envisaged in s. 273.1(1) of the Criminal Code ] was unprotected sex which the complainant did not consent to. With all other elements of the offence made out, the appeal against conviction should therefore be dismissed. The sentence was not demonstrably unfit, nor did it reflect an error in principle. Therefore, the appeal against sentence should also be dismissed. Farrar, J.A.: (dissenting) The trial judge erred in finding there was no consent under s. 273.1(1) of the Criminal Code .

The proper approach would have been to determine whether consent was vitiated under s. 265(3) (

c) by fraud. The appeal should be allowed and a new trial ordered. This information sheet does not form part of the court ’ s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 74 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Hutchinson , 2013 NSCA 1 Date: 20130103 Docket: CAC 370497 Registry: Halifax Between:

Craig Jaret Hutchinson Appellant v. Her Majesty The Queen Respondent Restriction on publication:

Section 486.4(1) of the Criminal Code of Canada Judges: MacDonald, C.J.N.S.; Oland, Hamilton, Fichaud, Farrar, JJ.A. Appeal Heard: June 4, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of MacDonald, C.J.N.S.; Oland, Hamilton and Fichaud, JJ.A. concurring; Farrar, J.A. dissenting on the ground that the complainant did not consent to the sexual activity in question under s. 273.1(1) of the Criminal Code of Canada . Counsel: Luke A. Craggs, for the appellant James A. Gumpert, Q.C. and Kimberley McOnie, for the respondent Order restricting publication – sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

I) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

I) to (iii).

Reasons for judgment : [ 1 ] The appellant, Craig Hutchinson, tried to trick his partner into becoming pregnant by poking holes in the condoms they used during intercourse. He knew full well that she did not want to become pregnant. In fact, she insisted on him wearing the condoms for that very reason. His actions were clearly reprehensible. But were they criminal? That is the main issue in this appeal. BACKGROUND [ 2 ] In January of 2006, Mr. Hutchinson began an intimate relationship with N.C. They enjoyed sex several times a week.

They chose condoms as their method of birth control because N.C. endured negative side effects with birth control pills. So unless N.C. was having her period (during which time she believed she could not get pregnant), she insisted that Mr. Hutchinson wear a condom. Normally she would place it on him; something he enjoyed. [ 3 ] However, by the Summer of 2006, N.C. began to question the future of their relationship. She made Mr. Hutchinson aware of this. This was far from mutual. Instead, Mr. Hutchinson was intent on seeing the relationship continue.

He thought that his best chance would be for her to become pregnant. Enter his scheme to sabotage the condoms. [ 4 ] N.C. found it peculiar when Mr. Hutchinson decided that he would start putting the condoms on and then even stranger when he insisted that she not look either when he was putting one on or taking one off. Of course, she was oblivious to his ulterior motive. [ 5 ] Then by late August, N.C. noticed something else very odd. Mr. Hutchinson began encouraging her to take a pregnancy test. She wondered why but, after much persistence, she acceded to his request. It came back as negative.

This was September 1. He insisted that she take another. She did so on September 5. It came back as positive. She was shocked. He was delighted. [ 6 ] Mr. Hutchinson ’ s scheme almost worked. N.C. initially decided to keep the baby and try to make the relationship work. They arranged pre-natal classes. But her doubts lingered. So she asked for a “ break ” to decide what to do. He overreacted, harassing her constantly. In the end she broke off the relationship. By then it was early November. He was devastated. In fact, he physically passed out upon learning of her decision.

He harassed her with many phone calls and text messages, which she tried to ignore but they kept on coming. Eventually, she answered one of his calls. He implored her to read his earlier texts, insisting that they contained some very important information. She relented only to be shocked again. She learned that he had sabotaged the condoms in the hopes she would become pregnant. He confessed more out of fear than guilt. He was afraid that she might use the remaining damaged condoms with a future partner and catch a sexually transmitted disease ( “ STD ” ).

The texts, which were sent on November 5, 2006, read in part: "The anger, I was wrong. I wanted a baby with you so bad, I sabotaged the condoms. Now they are not safe. Sorry for the anger, I was wrong. I wanted a baby with you. Friday, I took clothes. Poked holes in all of them. Don't want you to get an STD. I stepped on the phone charger; I think I broke it. I owe you a new one. Throw away your condoms, I poked holes in them all. Don't want you to get -- to protect you, I need to tell you something I did two months ago. One call is all it will take. Please." . . .

"To protect you, I need to tell you something I did two months ago. Now I will leave you alone."

[ 7 ] Sure enough, when N.C. checked the rest of the condoms (kept in the drawer of her night table), each one had a hole pierced through it. Still in shock, she phoned the police. [ 8 ] On November 16, N.C. had an abortion and endured significant painful complications for at least two weeks thereafter. [ 9 ] Mr. Hutchinson was charged with aggravated sexual assault. In an initial trial, he was acquitted on a directed verdict. Essentially, Moir, J. of the Supreme Court reasoned that, despite his deceptive scheme, Mr.

Hutchinson could not be convicted because N.C. had consented to the sexual intercourse in question. However, in a split decision of this court, a new trial was ordered. I will discuss this ruling later in my reasons. [ 10 ] The retrial was heard by Coughlan, J. of the Supreme Court. He acquitted Mr. Hutchinson of aggravated sexual assault and the Crown has not appealed. However, the judge did convict on the included offence of sexual assault, maintaining that while N.C. may have consented to sexual intercourse, she did not consent to unprotected sexual intercourse.

He explained: ¶43 From all the evidence, I find Mr. Hutchinson sabotaged the condoms by poking holes in them, and then had sexual intercourse with [N.C.] using the damaged condoms. ¶44 There was no voluntary agreement of [N.C.] to the sexual activity in question, which was sexual intercourse without contraception. . . . ¶47 Here, Mr. Hutchinson intended to engage in sexual intercourse with [N.C.] using damaged condoms, and he knew [N.C.] did not consent to sexual intercourse without contraception. [ 11 ] The judge then sentenced Mr. Hutchinson to 18 months in jail. Before us, Mr.

Hutchinson appeals both his conviction and sentence. ISSUES [ 12 ] Mr. Hutchinson lists the following grounds of appeal: 1. The Learned Supreme Court Justice misapplied the law of consent as set out in

section 273.1 of the Criminal Code ; 2. The Learned Supreme Court Justice erred by permitting the Respondent to lead opinion evidence from the abortion Doctor that was outside of the area of expertise of the abortion Doctor and using the opinion evidence in question in his decision to convict the Appellant; [Since abandoned.] 3. The Learned Supreme Court Justice imposed a sentence that was demonstrably harsh and excessive; 4. Such other grounds of appeal that may appear from the review of the complete record;

[ 13 ] Essentially, in appealing his conviction, Mr. Hutchinson insists that N.C. freely and voluntarily consented to have sexual intercourse with him and his deception over the condoms, however dastardly, was not enough to vitiate this consent. I will refine this issue in the course of my analysis. [ 14 ] In appealing the sentence, Mr. Hutchinson essentially argues that he should have been permitted to serve his sentence in the community as opposed to in jail. ANALYSIS Appeal Against Conviction [ 15 ] In resolving this issue, I will first review the relevant statutory regime.

Then I will examine this court ’ s decision which overturned Mr. Hutchinson ’ s initial acquittal, resulting in a new trial and the decision now under appeal. It is cited as R. v. Hutchinson , 2010 NSCA 3 and I will refer to it as “ Hutchinson #1 ” . I will then review several cases that have emerged since Hutchinson #1 . They offer helpful guidance to varying degrees. My conclusion, dismissing the conviction appeal, will follow. I will end with a brief response to my colleague Farrar, J.A. ’ s dissenting reasons, which I have had an opportunity to review in draft.

The Statutory Provisions [ 16 ] The crime of sexual assault gets its life from the Criminal Code ’ s general assault provisions; an assault including an intentional touching (application of force) without the victim ’ s consent: Assault 265

(1) A person commits an assault when (

a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (

b) he attempts or threatens, by

an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (

c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. Application

(2) This

section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. [ 17 ] A key element that the Crown must prove (and at the heart of this appeal) is the complainant ’ s lack of consent. However, even if consent is secured, in certain circumstances such as fraud, it may be deemed vitiated: Consent 265

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority. [18] Turning specifically to sexual assault, the Code offers no definition of the offence but case law confirmsthe obvious. It is an “assault” that is sexual in nature. See: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330 at ¶23-28. [19] However, in cases of sexual assault, the Code does offer a specific definition of consent: Meaning of “consent” 273.1

(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntaryagreement of the complainant to engage in the sexual activity in question. [20] Then, without being exhaustive, the Code identifies certain circumstances which will not constituteconsent to a sexual assault: Where no consent obtained 273.1(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue toengage in the activity. [21] To summarize then, a sexual assault is a sexually motivated touching of another person without thatperson’s consent. Consent occurs only when the complainant voluntarily agrees to the “sexual activity in question”. There are certaindefined circumstances, both specific to sexual assault [s. 273.1(2)] and assault generally [s. 265(3)] which do not constitute consent.

[22] Turning to the provisions most pertinent to us, the undisputed facts are that N.C. consented to havesexual intercourse with Mr. Hutchinson but she at no time agreed to have unprotected sex with him. So, the question becomes: Does thatconstitute consent pursuant to s. 273.1(1)? That, in turn, would depend entirely on what is meant by “the sexual activity in question”. Ifit simply means sexual intercourse, as the defence contends, then N.C. clearly consented. In that circumstance, to secure a conviction theCrown would have to prove, pursuant to s. 265(3), that this consent was vitiated by fraud.

On the other hand, if unprotected sex were the“sexual activity in question” as the Crown contends, then there would be no consent and this appeal would have to be dismissed. [23] This very issue was addressed by our court in Hutchinson # 1. It would therefore be helpful to have acloser look at that decision. Hutchinson #1 [24] For the majority, Roscoe, J.A. agreed with the Crown, concluding that unprotected sex represented “thesexual activity in question”, something N.C. at no time consented to. She reasoned: ¶34 With respect, the trial judge erred in his treatment of s. 265(1)(

a) and s.273.1(1), (see ¶ 45 and 46 quoted herein at¶ 19). In effect, he found that consent as defined in s. 273.1(1) had the same meaning as consent to the application of force in s. 265(1)(a). I agree with the submission of the Crown that since s. 265 applies to all forms of assault including sexual assault and s. 273.1 appliesonly to sexual assaults, that the words “voluntary agreement ... to engage in sexual activity in question”, must mean something more thanconsent to the application of force. ¶35 I agree with the statements of Paperny, J.A. in R. v. Ashlee, 2006 ABCA 244, leave refused [2006] S.C.C.A. No.415, regarding s. 273.1: 12

Section 273.1 of the Criminal Code came into force in 1992. It substantially reformed the law of sexual assault. Thelegislation in its

preamble expresses concern about the prevalence of sexual assault against women and children and was intended toensure the full protection of their Charter rights. It was drafted to reinforce the understanding that women have an inherent right ofcontrol over their own bodily integrity and that human dignity and equality rights demand nothing less. Parliament recognized thatconsent was usually the crux of sexual assault trials and therefore what constituted consent required clear legislative definition.

For thatreason, it unequivocally defined what exactly consent means and when consent cannot be obtained, or if obtained, would be invalid atlaw. ¶36 Although speaking about s. 265, in R. v. Saint-Laurent (1993), (QC CA), 90 C.C.C. (3d) 291,(Que. C.A.), leave to appeal to S.C.C. refused [1994] C.S.C.R. No. 55, Fish, J.A., as he then was, explained that consent entails areasonably informed choice to participate in the activity, at page 311: Mutual agreement is a safeguard of sexual integrity imposed by the state under the threat of penal sanction. In the absence of consent, anact of sex is, at least, prima facie

an act of assault. As a matter both of language and of law, consent implies a reasonably informed choice, freely exercised. No such choice has beenexercised where a person engages in sexual activity as a result of fraud, force, fear, or violence. Nor is the consent requirement satisfiedif, because of his or her mental state, one of the parties is incapable of understanding the sexual nature of the act, or of realizing that heor she may choose to decline participation.

"Consent" is, thus, stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even theapparent agreement, of a deceived, unconscious or compelled will. [emphasis added] ¶37 [N.C.] was entitled to control over her own sexual integrity and to choose whether her sexual activity would includethe risk of becoming pregnant through unprotected sex. The evidence of the complainant was that she only consented to protected sex.

InCuerrier, the Supreme Court recognized the fundamental difference between protected and unprotected sex as it pertains to the risksassociated with the transmission of bodily fluids (¶ 72, 95, 129). A choice to assume the risks associated with protected sex does not

necessarily include the risks of unprotected sex.

Section 273.1(1) requires that the trier of fact consider whether [N.C.] voluntarily agreedto unprotected sex with Mr. Hutchinson. ¶38 In my view, on the evidence in this case, a trier of fact could conclude that there was consent to the application offorce, that is, the sexual intercourse, but there was no “voluntary agreement” to the “sexual activity in question” which was,unbeknownst to the complainant, sexual intercourse without contraception. The sabotaging of the condoms fundamentally altered thenature of the sexual activity in question.

Her consent could therefore be found not to be reasonably informed and freely exercised. [25] Justice Roscoe then went on to address the Crown’s alternative argument that even had N.C.’swillingness to engage in sexual intercourse been enough to trigger her “consent” pursuant to s. 273.1, it nonetheless would have beenvitiated by fraud pursuant to s. 265(3). In reaching this conclusion, she applied the test laid down by the Supreme Court of Canada in R.v. Cuerrier, (SCC), [1998] 2 S.C.R. 371. There the accused had consensual intercourse with two different womenwithout informing them that he was HIV-positive.

He was acquitted at trial of two counts of aggravated assault. These acquittals wereupheld by the British Columbia Court of Appeal. However, the Supreme Court of Canada ordered a new trial and in the process directedthat to secure a conviction, the Crown would have to establish, among other things, that Mr. Cuerrier’s deceitful act exposed his victimsto a “significant risk of serious bodily harm”.

For Roscoe, J.A., a trier of fact could have found that N.C. was so exposed: ¶43 As noted above at ¶ 18, when Justice Moir applied the Cuerrier test to this case he found that there was evidenceof deceit but there was no evidence upon which the trier of fact could find that the deceit exposed the complainant to significant risk ofserious bodily harm.

He indicated that the complainant was “exposed” to pregnancy and pregnancy itself is not serious bodily harm. ¶44 One of the difficulties inherent in the application of Cuerrier to the facts of this case is that in Cuerrier thecomplainants did not become infected with HIV nor suffer any other physical harm as a result of the deceit. They were exposed to thevirus but did not contract it. In this case [N.C.] was not exposed to pregnancy, she was actually pregnant. As I emphasized in thequotation of ¶ 128 (at ¶ 41 above) of Justice Cory’s decision, deprivation may consist of actual harm or risk of harm.

The first question inthis case therefore is, was there evidence that [N.C.] suffered actual harm as a result of the deceit of Mr. Hutchinson? ¶45 As indicated by Justice Cory, the harm cannot be something of a minor or trivial nature, such as a scratch or a cold.Guidance on this issue is also provided in the decision of R. v. McCraw, (SCC), [1991] 3 S.C.R. 72, where the courtconsidered the meaning of serious bodily harm and concluded: 23 In

summary the meaning of "serious bodily harm" for the purposes of the

section is any hurt or injury, whetherphysical or psychological, that interferes in a substantial way with the physical or psychological integrity, health or well-being of thecomplainant. ¶46 In this case, there was evidence that as a result of the pregnancy the complainant actually suffered morningsickness. Her condition required medical attention on several occasions. Because the pregnancy was unwanted, the complainant alsosuffered from emotional and psychological distress and was required to face the difficult decision of whether to have an abortion.

As aresult of the abortion, she actually suffered from bleeding, blood clots and severe pain for a period of two weeks and a serious infectionthat required antibiotics. Again, medical attention was required on several occasions. The evidence supports a finding that all of this painand suffering was a direct and foreseeable consequence of the use of the sabotaged condoms. There was actual physical andpsychological harm that was not trivial or minor. It was significant.

A trier of fact could conclude that the consequences of the deceitcaused serious bodily harm to the complainant, thus satisfying the test for fraud vitiating consent. [26] Beveridge, J.A. took the opposite view. After a thorough review of the history of s. 273.1, he concludedthat “the sexual activity in question” meant sexual intercourse, something N.C. clearly consented to. He explained: ¶108

Section 273.1(1) provides that, subject to s. 265(3) and s-s.(2) of s. 273.1, consent means "the voluntary agreementto engage in the sexual activity in question". There is no elaboration as what is meant by "sexual activity in question". My colleague,Roscoe, J.A., would suggest that it is open to charge a jury that this means not just sexual intercourse, but sexual intercourse with acondom, or some other qualifying condition. She concludes that for the respondent to have engaged in sexual intercourse with asabotaged condom would permit a jury to find that the voluntary agreement was not an informed one and hence there would not be a

consent within the meaning of s. 273.1. I am unable to agree. ¶109 Nothing in the language of the provision, evolution or legislative history would permit such an

interpretation. Inmy opinion, the plain ordinary meaning of the words do not reveal any suggestion that Parliament intended the definition of consent in s.273.1 to take on a far broader requirement equating or even approaching the concept in tort law of "informed" consent. If it intended todo so, it had every opportunity.

Instead, Parliament chose straight-forward language that only speaks of a voluntary agreement to engagein the sexual activity in question. ¶110 The ordinary meaning of sexual activity in question is simply the touching, oral or otherwise, or type of intercourseas being the sexual activity in question. This ordinary natural meaning is reinforced by the general thrust of s. 276 that prior sexualactivity is generally not relevant on the issue whether the complainant consented to the activity that forms the subject matter of thecharge.

In other words, simply because a complainant has consented to intimate touching does not mean that she has consented to moreor different types of sexual activity. Consent to one activity does not mean that he or she has consented to some other activity. ¶111 This

interpretation is also reinforced by the balance of s. 273.1.

Section 273.1(2) sets out five circumstances whereconsent cannot be obtained. Of note is para. (

d) that no consent is obtained where the complainant expresses by words or conduct a lackof agreement to engage in the activity; and (

e) the complainant, having consented to engage in sexual activity, expresses by words orconduct a lack of agreement to continue to engage in the activity. Together with s. 273.1(1), no means no and yes to one activity doesnot mean yes to a different one. . . . ¶122 It is unnecessary to fully analyze the degree to which the provisions of s. 265(3) and s. 273.1 overlap. In myopinion, to adopt the

interpretation of s. 273.1 suggested by my colleague, Roscoe, J.A., would be to make moot any issue of fraudvitiating consent because there would never be a voluntary agreement to engage in the sexual activity in question. Any fraud wouldprevent consent from being reasonably informed. This has never been the law, and would mark an impermissible extension tocriminalize almost any dishonest behaviour by either of the apparently consenting participants. ¶123 My colleague, Roscoe, J.A., relies on comments by Fish J.A, as he then was, in R. v.

Saint-Laurent (1993), (QC CA), 90 C.C.C. (3d) 291 that "consent implies a reasonably informed choice, freely exercised". With respect, I amunable to agree that this one sentence can be extracted as a correct statement of the law with respect to consent in cases of sexual assault. ¶124 The case involved an appeal from a refusal by the Superior Court judge to quash the accused's committal to standtrial on charges of sexual assault. The accused was a psychiatrist. The evidence was that he had sexual relations with two of hispatients. The events all took place prior to the enactment of s. 273.1 of the Code.

Expert evidence had been called about the degree ofdependency that can exist in the relationship between a psychiatrist and his or her patients. The Crown relied on s. 265(3)(d), arguingthat there was some evidence upon which a jury could find that consent was vitiated by the exercise of authority by the accused. TheCrown also raised the issue of fraud.

Fish J.A. wrote concurring reasons to dismiss the appeal. ¶125 With respect to the issue of fraud, he wrote (p. 308): Though the Crown does mention fraud, I agree with Beauregard J.A. that its case against appellant rests primarily on the allegation thathe exercised authority over both complainants in a way that deliberately induced them to "submit" to, or "not resist", sexual relations withhim. In any event, the issue at this stage is whether the magistrate had any basis at all for committing the appellant to trial.

I find itunnecessary for that reason to express a detailed opinion on the subsidiary issue of fraud. I would simply say that "fraud", in s. 265(3),does not contemplate every deceit perpetrated in the pursuit of sexual gratification. A man and a woman both act dishonestly and, to thatextent, "fraudulently", when they cause one another to embark on an intimate relationship by each claiming falsely to be rich and single.Disingenuous proclamations of love for the same purpose are equally dishonest.

The criminal law, however, does not, in my view,characterize conduct of this kind as a sexual assault: not all liars are rapists. There must be something more.

In the context of this case, I would require evidence of deceit that goes to the very nature and quality of the defendant's conduct: see R. v.Petrozzi (1987), (BC CA), 35 C.C.C. (3d) 528, 58 C.R. (3d) 320, [1987] 5 W.W.R. 71 (B.C.C.A.), where the BritishColumbia Court of Appeal held that the type of fraud referred to in s. 265(3)(

c) relates to the nature and quality of the act and not to thekind of falsehood alleged in that case (a false representation that the accused intended to pay the victim, a prostitute, for the sexualservices obtained). ¶126 After referring to the history of the introduction of s. 265(3)(

d) he commented (p. 311): Returning, then, to the meaning of "authority" in s. 265(3)(

d) of the Criminal Code, it seems to me that the purpose of the law in thisarea has always been to criminalize a coerced sexual relationship. Mutual agreement is a safeguard of sexual integrity imposed by thestate under the threat of penal sanction. In the absence of consent,

an act of sex is, at least prima facie,

an act of assault. As a matter both of language and of law, consent implies a reasonably informed choice, freely exercised. No such choice has beenexercised where a person engages in sexual activity as a result of fraud, force, fear, or violence. Nor is the consent requirement satisfiedif, because of his or her mental state, one of the parties is incapable of understanding the sexual nature of the act, or of realizing that heor she may choose to decline participation.

"Consent" is thus stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even theapparent agreement, of a deceived, unconscious or compelled will. Putting the matter this way emphasizes the difficulty ofdistinguishing, otherwise than by reference to vitiating factors, between "consent" and "non-consent" in relation to the offence of assault. ¶127 The last paragraph above was subsequently endorsed by the Supreme Court of Canada in R. v. Ewanchuk, supra atpara. 37.

There is nothing remarkable about the balance of the quote, except for his reference "consent implies a reasonably informedchoice, freely exercised." If Fish J.A. was intending to expand the scope of what is meant by consent to require it to be reasonablyinformed, it seems incongruous for him to have earlier affirmed the traditional view articulated by the British Columbia Court of Appealin R. v.

Petrozzi (1987), (BC CA), 35 C.C.C. (3d) 528, that for fraud to vitiate consent it must relate to the nature andquality of the act. ¶128 I would also note that Fish J.A. did not say consent "means" a reasonably informed choice. But that is how mycolleague would interpret this comment, and has led her to conclude that, in the case at bar, a jury could find that the complainant'sapparent consent was not reasonably informed and hence not "consent" within the meaning of s. 273.1 of the Code. With respect, Icannot agree.

In my opinion, the evidence was clear, the complainant voluntarily agreed to the sexual activity in question, which wassexual intercourse. It would be an error in law to instruct a jury that they could consider that the sexual activity in question meant sexualintercourse with an intact condom. The consequences of the

interpretation suggested by my colleague would lead to complaints andprosecution of individuals of either sex who lie to their spouse or partner about taking effective contraceptives – a result surely notintended by Parliament. [27] Furthermore, in Justice Beveridge’s view, N.C.’s consent (to sexual intercourse) could not have beenvitiated by fraud pursuant to s. 265(3). He therefore would have sustained the acquittal. [28] Bateman, J.A. rounded out the panel. She concurred with Roscoe, J.A. However, she added that thejudge also misapplied the test for a directed verdict.

Specifically, his task was to determine if there was any evidence upon which aproperly instructed jury could convict. Instead, in her view, the judge weighed the evidence, something that was beyond his mandate atthat stage of the proceedings. Therefore, in Hutchinson #1, this court produced two very compelling, but opposing, perspectives. In thepresent appeal, Mr. Hutchinson invites us to adopt Beveridge, J.A.’s dissenting decision.

Specifically, he insists that N.C.’s consent tosexual intercourse was consent to “the sexual activity in question” under s. 273.1 and that this deception, like all forms of deception, musttherefore be dealt with under s. 265(3) with its requisite “significant risk of serious bodily harm”. Recent Jurisprudence

[29] Since Hutchinson #1, three cases have emerged to offer guidance. The first is R. v. Crangle, 2010ONCA 451, [2010] O.J. No. 2587, leave to appeal to SCC refused, [2010] S.C.C.A. No. 300, where the Ontario Court of Appealconsidered the meaning of consent in s. 273.1 and its interplay with s. 265(3). Next came R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440where the Supreme Court of Canada offered helpful guidance on the meaning of consent under s. 273.1. Finally, very recently, in R. v.Mabior, 2012 SCC 47, the Supreme Court of Canada revisited its decision in R. v.

Cuerrier to determine when in HIV-positive cases,consent would be vitiated by fraud pursuant to s. 265(3)(c). [30] I will now discuss each of these cases in order. [31] In Crangle, the defendant had intercourse with his “identical” twin brother’s girlfriend in somewhatbizarre circumstances. After an evening of partying, the victim fell asleep alone in her boyfriend’s bed. She woke to what she thoughtwas her boyfriend having sex with her. Then, with shock, she realized that it was not her boyfriend but his twin brother. She thenvigorously resisted and he desisted.

One of the questions raised on appeal was whether she had consented to the “sexual activity inquestion” according to s. 273.1(1). Like N.C., in our case, her consent to intercourse was given under a serious misapprehension.Goudge, J.A. found no consent under s. 273.1(1) because sex with her boyfriend represented an “inseparable component” of her consent: ¶19 Based on the evidence, the trial judge concluded that while in the beginning the complainant may have beenagreeable to the activity because she thought it was with Craig Crangle, at no time did she consent to sexual intercourse with theappellant.

Thus, at no time did she voluntarily agree to the sexual activity in question. ¶20 Not only are these findings well grounded in the evidence, in my view, they are entirely reasonable. In thebeginning, the complainant mistakenly thought the sexual activity was with someone with whom she had an ongoing consensual sexualrelationship. Such a relationship is a deeply personal one in which the identity of the sexual partner is fundamental. It is hardly surprisingthat, from the complainant's perspective that night, the identity of her sexual partner was an inseparable component of any consent tosexual activity.

Subjectively, she did not voluntarily agree to sexual intercourse with anyone other than Craig Crangle. That included theappellant. [32] Yet, like here, the appellant Crangle argued that the “sexual activity in question” was sexual intercourseand, therefore, again like here, the Crown would have to prove fraud under s. 265(3).

Goudge, J.A. rejected that suggestion and in theprocess considered the interesting interplay between these two provisions: ¶21 The appellant argues that the offence of sexual assault could only have been made out if it was found that he hadcommitted fraud so as to vitiate the complainant's consent pursuant to s. 265(3)(

c) of the Code. ¶22 It is certainly true that this subsection provides that fraud can vitiate consent for sexual assault, as for all otherforms of assault. Moreover, in R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371, the Supreme Court of Canada decided thatone form of fraud that can be found to vitiate consent is fraud pertaining to the identity of the partner. It also made clear however, thatfraud was not limited to this, but included fraud pertaining to the nature and quality of the act, or to other acts of dishonesty that on aprincipled basis can be shown to vitiate consent. In other words, the purpose of s. 265(1)(

c) encompasses more than fraud pertaining toidentity. ¶23 More importantly, there is nothing in the language of s. 265(3)(

c) or the jurisprudence to suggest that only amistake as to the identity of the sexual partner that is induced by fraud vitiates consent. Moreover, the appellant suggests no policyreason why an identity mistake caused by something else will not do. Indeed s. 273.1 suggests the opposite. It does not confine consentto voluntary agreement except where that is negated by an identity mistake due to fraud.

Where the subjective state of mind of thecomplainant is that her consent hinged on the identity of her sexual partner, her mistake about that identity renders his conductnon-consensual, whether or not the mistake is induced by fraud.

The presence or absence of fraud may however be significant to whetherthe Crown can prove that the accused did not have an honest belief that the complainant was consenting. ¶24 Where, as here, the complainant's consent to sexual activity depended on it being with a particular person, hermistake about the identity of that person whether induced by fraud or not, necessarily means that subjectively she did not voluntarilyagree to the sexual activity that occurred with someone else. That is precisely what the trial judge found happened in this case.

[33] Goudge, J.A.'s conclusion accords nicely with the Supreme Court's directive in Ewanchuk, supra, thatthe absence of consent must be considered from the subjective perspective of the complainant. As Major, J. explained in Ewanchuk: ¶26 The absence of consent, however, is subjective and determined by reference to the complainant's subjective internal state of mindtowards the touching, at the time it occurred: see R. v. Jensen (1996), (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.), atpp. 437-38, aff'd (SCC), [1997] 1 S.C.R. 304, R. v. Park, (SCC), [1995] 2 S.C.R. 836, at p. 850, perL'Heureux-Dubé J., and D.

Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513. ¶27 Confusion has arisen from time to time on the meaning of consent as an element of the actus reus of sexual assault. Some of thisconfusion has been caused by the word "consent" itself. A number of commentators have observed that the notion of consent connotesactive behaviour: see, for example, N. Brett, "Sexual Offenses and Consent" (1998), 11 Can. J. Law & Jur. 69, at p. 73.

While this maybe true in the general use of the word, for the purposes of determining the absence of consent as an element of the actus reus, the actualstate of mind of the complainant is determinative. At this point, the trier of fact is only concerned with the complainant's perspective.The approach is purely subjective. [34] In J.A., the Supreme Court interpreted s. 273.1, albeit from a totally different factual context. There, thecomplainant K.D. purportedly consented to sexual activity referred to as “erotic asphyxiation”. Specifically, K.D. allowed J.A. to chokeher and then perform sexual acts on her.

Her purported consent extended to allowing K.D. to continue with the sexual activity even if shewere to be rendered unconscious. J.A. did in fact become unconscious but, as agreed, K.D. continued with the sexual activity. [35] Following an unrelated dispute, K.D. reported this activity to the police. J.A. was charged with sexualassault and convicted at trial. However, he was acquitted on appeal in light of K.D.’s advance consent. A majority of the Supreme Courtof Canada then restored the conviction, rejecting the notion that a complainant can give advance consent to sexual activity.

In theprocess, McLachlin, C.J., for the majority, offered some important guidance regarding the operation of s. 273.1. [36] For example, the Chief Justice explained that in order to grasp Parliament’s true intention, this provisionmust be read in harmony with the other Code provisions dealing with sexual assault (which I have outlined above).

By doing so, itbecomes clear that consent under s. 273.1(1) “must be specifically directed to each and every sexual act”: ¶31 The foregoing provisions of the Criminal Code indicate that Parliament viewed consent as the conscious agreementof the complainant to engage in every sexual act in a particular encounter. ¶32 The proper approach to statutory

interpretation was summarized in Canada Trustco Mortgage Co. v. Canada, 2005SCC 54, [2005] 2 S.C.R. 601: "The

interpretation of a statutory provision must be made according to a textual, contextual and purposiveanalysis to find a meaning that is harmonious with the Act as a whole." The Court emphasized that while "[t]he relative effects ofordinary meaning, context and purpose on the interpretive process may vary, ... in all cases the court must seek to read the provisions ofan Act as a harmonious whole" (para. 10). ¶33 It follows that we must seek to interpret the provisions that deal with consent in a harmonious way.

Applying thisapproach, we see that Parliament defined consent in a way that requires the complainant to be conscious throughout the sexual activity inquestion. The issue is not whether the Court should identify a new exception that vitiates consent to sexual activity while unconscious(see reasons of Fish J., at para. 95), but whether an unconscious person can qualify as consenting under Parliament's definition. ¶34 Consent for the purposes of sexual assault is defined in s. 273.1(1) as "the voluntary agreement of the complainantto engage in the sexual activity in question".

This suggests that the consent of the complainant must be specifically directed to each andevery sexual act, negating the argument [page454] that broad advance consent is what Parliament had in mind. As discussed below, thisCourt has also interpreted this provision as requiring the complainant to consent to the activity "at the time it occur[s]" (Ewanchuk, atpara. 26). . . .

¶43 The question in this case is whether Parliament defined consent in a way that extends to advance consent to sexualacts committed while the complainant is unconscious. In my view, it did not. J.A.'s contention that advance consent can be given tosexual acts taking place during unconsciousness is not in harmony with the provisions of the Code and their underlying policies. Theseprovisions indicate that Parliament viewed consent as requiring a "capable" or operating mind, able to evaluate each and every sexual actcommitted.

To hold otherwise runs counter to Parliament's clear intent that a person has the right to consent to particular acts and torevoke her consent at any time. Reading these provisions together, I cannot accept the respondent's contention that an individual mayconsent in advance to sexual activity taking place while she is unconscious. [37] In other words, consent commands “active actual consent throughout every phase of the sexual activity”: ¶66 The definition of consent for sexual assault requires the complainant to provide actual active consent throughoutevery phase of the sexual activity.

It is not possible for an unconscious person to satisfy this requirement, even if she expresses herconsent in advance.

Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting istherefore not consensual within the meaning of the Criminal Code. [38] In fact, the Chief Justice, when identifying the risks of interpreting s. 273.1(1) too broadly, alluded to asituation very close to the one we face – a man without his partner’s express knowledge neglecting to wear a condom: ¶58 The respondent also argues that requiring conscious consent to sexual activity may result in absurd outcomes. Hecites the example of a person who kisses his sleeping partner.

In that situation, [page 462] he argues, the accused would be guilty ofsexual assault unless he is permitted to argue that his sleeping partner consented to the kiss in advance. ¶59 The first difficulty with altering the definition of consent to deal with the respondent's hypothesis is that it wouldonly provide a defence where the complainant specifically turns her mind to consenting to the particular sexual acts that later occurbefore falling asleep.

The respondent's position is that there is no sexual assault in this case because the complainant consented to bothbeing rendered unconscious and to engaging in the sexual activity that occurred while she was unconscious. If a hypotheticalcomplainant did not expect her partner to kiss her - or whatever other acts are at issue - while she was asleep, the respondent's approachwould not provide a defence. ¶60 The second difficulty is the risk that the unconscious person's wishes would be innocently misinterpreted by his orher partner.

Sexual preferences may be very particular and difficult for individuals to precisely express. If the accused fails to performthe sexual acts precisely as the complainant would have wanted - by neglecting to wear a condom for instance - the unconscious partywill be unintentionally violated. In addition to the risk of innocent misinterpretation, the respondent's position does not recognize the totalvulnerability of the unconscious partner and the need to protect this person from exploitation. The unconscious partner cannotmeaningfully control how her person is being touched, leaving her open to abuse: R. v.

Osvath (1996), (ON CA), 46C.R. (4th) 124 (Ont. C.A.), per Abella J.A. (as she then was), dissenting. [Emphasis added.] [39] This approach to s. 273.1(1), in my view, offers strong support for the Crown in our case.

After all, ifthis provision would prevent an accused from unintentionally violating his unconscious partner’s requirement for him to wear a condom,then surely it must be seen to prevent an accused from intentionally duping his partner, where a pre-requisite to her consent is that hewear an intact condom. [40] Therefore, in my respectful view, these passages support the Crown’s submission that to consent under s.273.1(1), the alleged victim must be fully aware of the exact nature of the proposed sexual activity. In our case, the judge found that theproposed sexual activity was protected sex.

[ 41 ] In other words, to achieve the overarching goal of preventing sexual exploitation, J.A. invites a restricted

interpretation of s. 273.1(1) by limiting the occasions when a complainant would be seen to have consented. [ 42 ] Furthermore, other language in s. 273.1, in my view, also supports this approach. For example, as I have noted above, Parliament has enacted s. 265(3) as another means to limit the use of consent as a defence to assault. Note then the opening phrase of s. 273.1, “ subject to subsection (2) and subsection 265(3) ... ” . Obviously, Parliament was careful to preserve both avenues of recourse for victims of sexual assault.

In the same vein, after Parliament prescribed circumstances where consent will not be obtained [s. 273.1(2)], it again carefully directed [in s. 273.1(3)] that nothing in this list “ shall be construed as limiting the circumstances in which no consent is obtained ” . In other words, the consistent theme appears to reflect an effort to prevent sexual exploitation by limiting the circumstances where a victim is said to have consented. [ 43 ] Finally, very recently from the Supreme Court of Canada, we have R. v. Mabior , supra .

Like Cuerrier , it involved an accused who had consensual intercourse with several women without notifying them that he was HIV- positive. This provided an opportunity for the Supreme Court to revisit Cuerrier in light of medical advancements that could reduce the risks of contracting HIV from sexual partners. [ 44 ] After a thorough analysis, McLachlin, C.J. for a unanimous court found no need to disturb the Cuerrier “ significant risk of serious bodily harm ” test but modified how it might be met in today ’ s HIV context.

Specifically, the Court concluded that a “ realistic possibility of transmission of HIV ” will constitute a “ significant risk of serious bodily harm ” . Further, for Mr. Mabior, his low viral load combined with the use of a condom would be enough to preclude a realistic possibility of transmission. ¶104 To summarize, to obtain a conviction under ss. 265(3)(

c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. Failure to disclose ( the dishonest act ) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm ( deprivation ). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV.

On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used. However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play. ¶105 The usual rules of evidence and proof apply.

The Crown bears the burden of establishing the elements of the offence — a dishonest act and deprivation — beyond a reasonable doubt. Where the Crown has made a prima facie case of deception and deprivation as described in these reasons, a tactical burden may fall on the accused to raise a reasonable doubt, by calling evidence that he had a low viral load at the time and that condom protection was used. [ 45 ] In the end, convictions were therefore sustained for those occasions when Mr.

Mabior, despite his low viral load, neglected to wear a condom but he was acquitted on the one occasion that, with a low viral load, he wore a condom: ¶106 With respect to the four counts before us, the complainants all consented to sexual intercourse with the accused. Each of the complainants testified that they would not have had sex with the accused had they known that he was HIV-positive.

The only issue is whether their consent was vitiated because he did not tell them that he had HIV. ¶107 The trial judge found the accused guilty of aggravated sexual assault on the four counts where it was established that his viral load was not undetectable or no condom was used. The Court of Appeal set aside the convictions on the basis that either an undetectable viral load or condom protection would suffice. ¶108 As set out above, at this point in the development of the common law, a clear test can be laid down.

The absence of a realistic possibility of HIV transmission precludes a finding of fraud vitiating consent under s. 265(3) (

c) of the Criminal Code . In the case at hand, no realistic possibility of transmission was established when the accused had a low viral load and wore a condom. It follows that the appeal should be allowed insofar as the decision of the Court of Appeal conflicts with this conclusion. ¶109 The accused had a low viral load at the time of intercourse with each of S.H., D.C.S. and D.H., but did not use a

condom. Consequently, the trial judge’s convictions on these counts should be maintained. This leaves K.G. The trial judge convicted on the ground that, although the accused used a condom at the time of the encounter, his viral load “was not suppressed” (para. 128). As discussed, the combination of a low viral load – as opposed to an undetectable viral load – and of condom use negates a realistic possibility of transmission, on the evidence in this case. The record shows that the accused’s viral load was low at the time of sexual relations with K.G.

When combined with condom protection, this low viral load did not expose K.G. to a significant risk of serious bodily harm. The trial judge’s conviction on this count must be reversed. ¶110 I would allow the appeal in part and restore the convictions in respect of the complaints by S.H., D.C.S. and D.H. I would dismiss the appeal in respect of the complaint by K.G. Conclusion [ 46 ] Of the three recent decisions, Crangle and J.A. are more relevant to our circumstances. Crangle is particularly persuasive because, like here, the Court was asked to consider the interplay between 273.1 and s. 265(3) .

Specifically, it found no consent to “ the sexual activity in question ” under s. 273.1 because the identity of her sexual partner represented an “ inseparable component ” of her consent to sexual intercourse. I am persuaded by this logic. Put another way, 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. Furthermore, it follows that, where there is no consent in the first place, there is no need to construct a s. 265(3) analysis simply because there happened to be a deception.

Crangle , therefore, belies Mr. Hutchinson ’ s theory that every deception case falls under s. 265(3) (c). [ 47 ] As well, this approach, in my view, is buttressed by the guidance offered in J.A. which, as I have noted above, calls for an

interpretation of s. 273.1 that would limit the occasions when a complainant would be seen to have consented. [ 48 ] On the other hand, Mabior would appear to have limited relevance to our circumstances. It dealt exclusively with s. 265(3) with no reference whatever to s. 273.1. Instead it represented the Supreme Court ’ s opportunity to revisit Cuerrier which itself was exclusively a s. 265(3) case. Thus the Court (at ¶ 11) identified the issue as: “ What is the correct

interpretation of ‘ fraud ’ vitiating consent to sexual activity in s. 265(3)(

c) of the Criminal Code ? ” And later added (at ¶ 56): “ This brings us to the nub of the question before us – when, precisely, should non-disclosure of HIV status amount to fraud vitiating consent under s. 265(3) ( c )? ” [ 49 ] Nonetheless, Mabior does offer important guidance in two areas. Firstly, it reminds us of the importance of Charter values when interpreting legislation.

Specifically, the Court noted how the once “ restrictive view of how lack of consent to sexual relations could be established ” has given way to a more modern post- Charter approach that sees “ sexual assault not only as a crime associated with emotional and physical harm to the victim, but as the wrongful exploitation of another human being ” : ¶44 Courts must interpret legislation harmoniously with the constitutional norms enshrined in the Charter : R. v.

Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45, at para. 33 ; Application under s. 83.28 of the Criminal Code (Re) , 2004 SCC 42 , [2004] 2 S.C.R. 248, at para. 35 . Charter values are always relevant to the

interpretation of a disputed provision of the Criminal Code . ¶45 The Charter values of equality, autonomy, liberty, privacy and human dignity are particularly relevant to the

interpretation of fraud vitiating consent to sexual relations. The formerly narrow view of consent has been replaced by a view that respects each sexual partner as an autonomous, equal and free person. Our modern understanding of sexual assault is based on the preservation of the right to refuse sexual intercourse: sexual assault is wrong because it denies the victim’s dignity as a human being. Fraud in s. 265(3) (

c) of the Criminal Code must be interpreted in light of these values. ¶46 As we have already seen, prior to the adoption of the Charter in 1982 and the reform of sexual offences in 1983, courts took a restrictive view of how lack of consent to sexual relations could be established and how consent could be negated by fraud.

Rules of evidence and procedure, like the ancient rule that non-consent must be supported by evidence of a “hue and cry” in the neighbourhood immediately after the alleged sexual assault, or the willingness of judges to infer consent from dress or prior sexual experience, systemically biased the trial process in favour of finding consent. In like fashion, the jurisprudence, post- Clarence , took a narrow view of fraud capable of vitiating consent, holding that it went only to the sexual nature of the act, and that it did not apply to married women, who were bound to submit to their husbands in all circumstances.

¶47 Post-Charter Canadian law has repudiated this crabbed view of consent and fraud. Amendments to the CriminalCode have removed the evidentiary burdens and presumptions that once made proof of lack of consent difficult. Courts have held thatjudges may not infer consent from the way the complainant was dressed or the fact that she may have flirted: R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330. And in 1998, Cuerrier signaled a return to a generous

interpretation of fraud capable ofvitiating consent. ¶48 In keeping with the Charter values of equality and autonomy, we now see sexual assault not only as a crimeassociated with emotional and physical harm to the victim, but as the wrongful exploitation of another human being. To engage insexual acts without the consent of another person is to treat him or her as an object and negate his or her human dignity. Although theCharter is not directly engaged, the values that animate it must be taken into account in interpreting s. 265(3)(

c) of the Criminal Code. [50] Although these comments were offered in the context of s. 265(3), in my view, they have equalpersuasion to s. 273.1. [51] This too would be consistent with the poignant words of Major, J. in Ewanchuk, supra, where hereminds us that the goal of sexual assault legislation is to protect the personal integrity of every individual (or its corollary - preventingsexual exploitation): ¶28 The rationale underlying the criminalization of assault explains this. Society is committed to protecting thepersonal integrity, both physical and psychological, of every individual.

Having control over who touches one’s body, and how, lies atthe core of human dignity and autonomy. [52] Secondly, Mabior offers important guidance when drawing the line between criminal conduct and noncriminal conduct. Again, although this was addressed in the context of s. 265(3), the general concepts are equally persuasive to thisappeal. Specifically, the court recognized that a person should not be labelled a criminal for every deception surrounding sexual activity.That would set the bar too low.

Instead (in highlighting the benefits of its “realistic possibility of transmission of HIV” approach), theCourt suggests that only “serious deceptions with serious consequences” should be considered criminal while at the same time“irresponsible, reprehensible conduct” must not be condoned: ¶87 Third, as discussed earlier in considering guides to

interpretation, a standard of realistic possibility of transmissionof HIV avoids setting the bar for criminal conviction too high or too low. A standard of any risk, however small, would arguably set thethreshold for criminal conduct too low. On the other hand, to limit s. 265(3)(

c) to cases where the risk is “high” might condoneirresponsible, reprehensible conduct. ¶88 Fourth, the common law and statutory history of fraud vitiating consent to sexual relations supports viewing“significant risk of serious bodily harm” as requiring a realistic possibility of transmission of HIV. This history suggests that onlyserious deceptions with serious consequences are capable of vitiating consent to sexual relations. Interpreting “significant risk of seriousbodily harm” in Cuerrier as extending to any risk of transmission would be inconsistent with this.

A realistic possibility of transmissionarguably strikes the right balance for a disease with the life-altering consequences of HIV. [53] In

summary, from these post-Hutchinson #1 cases, I glean the following: - consent under s. 273.1 “must be specifically directed to each and every sexual act” (J.A.) - s. 273.1 is restricted to “active actual consent throughout every phase of the sexual activity” (J.A.) - deception that involves an “inseparable component” of a complainant’s consent to sexual intercourse represents no consent under s.273.1 (Crangle)

- sexual assault involves more than “ a crime associated with emotional and physical harm to the victim, but as the wrongful exploitation of another human being ” ( Mabior ) - “ irresponsible, reprehensible conduct ” must not be condoned but at the same time, to be criminal, the deception must minimally be serious with serious consequences ( Mabior ) [ 54 ] Applying these principles to this appeal, it is clear that protected sex was an essential feature of the proposed sexual act and an inseparable component of N.C. ’ s consent. Furthermore, Mr.

Hutchinson ’ s actions represented the “ wrongful exploitation of another human being ” . In fact, his deception was “ [very] serious ... with [very] serious consequences ” . [ 55 ] In short, N.C. did not consent to the sexual activity in question pursuant to s. 273.1 and I would therefore dismiss the appeal against conviction. [ 56 ] However, before leaving this issue, I would like to address two further points raised by Mr. Hutchinson and a third issue that could potentially flow from Mabior . [ 57 ] Firstly, Mr. Hutchinson submits that the trial judge ’ s

interpretation of s. 273.1(1) would lead to serious unintended consequences. Specifically, he asserts (and the Crown concedes) that had it been Mr. Hutchinson who insisted on protected sex and N.C. who sabotaged the condoms, she very well could have been charged. That may be. However, if such a scenario were to emerge, it would be for Parliament (and not the courts) to resolve. Again, I refer to J.A .: ¶65 In the end, we are left with this. Parliament has defined sexual assault as sexual touching without consent.

It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to "the sexual activity in question" is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have surrounded consent to sexual relations and undermined the law's ability to address the crime of sexual assault. In some situations, the concept of consent Parliament has adopted may seem unrealistic. However, it is inappropriate for this Court to carve out exceptions when they undermine Parliament's choice.

In the absence of a constitutional challenge, the appropriate body to alter the law on consent in relation to sexual assault is Parliament, should it deem this necessary. [ 58 ] Furthermore, despite the Crown ’ s concession on this point, I am not convinced that a hypothetical charge against N.C. would stick. After all, the consequences of an unintended pregnancy can be so much more profound for the mother than for the father.

For example, Derrick, P.C.J., the preliminary inquiry judge in Hutchinson #1, described the mother ’ s perspective: ¶37 Biology is not destiny: an unwanted pregnancy intrudes upon a woman's autonomy and leaves her with no option but to assume either the risks associated with it and childbirth or the risks associated with abortion. The fact that the incidence of serious problems in pregnancy, childbirth and abortion, are low does not alter the fact that a pregnant woman faces the possibility of risks to her health and even her life that a non-pregnant woman does not.

The evidence supports the reasonable inference that had Mr. Hutchinson not sabotaged the condoms, [N.C.] would not have found herself in a condition that carries with it serious risks she did not choose to assume, faced with choices she should not have had to make. The evidence indicates that [N.C.] had already made an autonomous choice not to be pregnant, well before her relationship with Mr. Hutchinson started to unravel. Mr.

Hutchinson's conduct deprived [N.C.] of her choice to avoid becoming pregnant and exposed her to all the potential risks associated with pregnancy, including risks that would endanger her life if she was unfortunate enough to develop certain conditions. Furthermore, Mr.

Hutchinson's conduct exposed [N.C.] to the risks associated with having an abortion, the only choice she had available to her for ending the pregnancy and returning to her non-pregnant state. [ 59 ] Therefore, while using a condom to avoid pregnancy represented an essential feature of the sexual act and an “ inseparable component ” of N.C. ’ s consent to sexual intercourse, it remains an open question as to whether the same would be true for Mr. Hutchinson. That important point is for another case where there would be sufficient facts to illuminate the inquiry. [ 60 ] Secondly, Mr.

Hutchinson suggests that to interpret s. 273.1 as the Crown suggests would render s. 265(3) (

c) redundant. In other words, he asks rhetorically – could there ever be consent induced by fraud, as s. 265(3) (

c) envisages, if

there must be complete awareness of the sexual activity for consent to have occurred in the first place? [61] Respectfully, I have two responses to this concern. Firstly, s. 265 applies to all assaults, while s. 273.1(1)is limited to sexual assaults (granted, the cases where fraud would come into play outside of a sexual context would be rare). [62] Secondly, and in any case, I ask what really would be the problem with the Crown having two potentialavenues available to it to prove a lack of consent? In my respectful view, that is not necessarily a bad thing.

Here, I agree with ProfessorSteve Coughlan in his annotation to Hutchinson #1, 2010 Carswell NS 17 at p. 7: One of Justice Beveridge’s concerns with allowing this type of fraud to mean that there is no consent is that it would render the “vitiationof consent” analysis redundant. If fraud about circumstances beyond the physical nature of the act meant there was no consent, then onewould never reach a vitiation analysis: the kind of deception that led to a finding of vitiation would already have led to the result thatthere was no consent. However, it is not obvious that this is really a terribly concerning result.

To ask whether consent has been vitiatedamounts, much of the time, to asking whether something that looked like consent was “really” consent. It is, most of the time, simplyanother way of asking whether there genuinely was consent in all the circumstances. That one should arrive at the same result by twomethods of analysis should be encouraging, not a cause for concern. See also: R. v. D.S. (2004), (ON CA), 188 C.C.C. (3d) 514, [2004] O.J. No. 3440 (Ont. C.A.) at ¶29 and ¶45-47,aff’d R. v.

Stender, 2005 SCC 36, [2005] 1 S.C.R. 914. [63] Therefore, while it remains unnecessary for me to go down the s. 265 vitiated consent route, the fact thatthis might also have been available to the Crown should not change matters. [64] Finally, there is one lingering issue in Mabior’s wake. It involves the fact that Mr. Mabior was acquittedof the one charge where he used a condom while also having a low viral load. This may raise several questions. For example, how doesone square this acquittal with Mr. Hutchinson’s conviction?

After all, this complainant testified that had she known the truth about Mr.Mabior’s HIV status she would not have consented to sexual intercourse. Would that not have rendered it an essential feature of herconsent to sexual intercourse thereby voiding consent “to the sexual activity in question” under s. 273.1? Therefore, should Mr. Mabiornot at least have been convicted of the included offence of sexual assault? If so, does his acquittal by the Supreme Court of Canada notplace my analysis on shaky ground? [65] I acknowledge that those would be fair questions.

However, for several reasons, I respectfully believethat my analysis survives Mabior. Firstly, and as I have noted, Mabior was never presented as a s. 273.1 case. As such, it remainsimpossible to know how significant the trier of fact would have viewed this deception. After all, my analysis acknowledges that notevery deception voids consent under s. 273.1. Instead, it targets only those involving an essential feature of the sexual act. Secondly, andas noted above, we learn from Mabior that the criminal law targets only those deceptions considered to be “serious ... with seriousconsequences”.

With this count, the Court concluded that there was no realistic possibility of HIV transmission. As such, it must beinferred that this deception was not sufficiently serious to warrant a criminal sanction. One might therefore expect the same result on a s.273.1 analysis. Of course, the same cannot be said for Mr. Hutchinson whose deception, as I have noted, was very serious with veryserious consequences. In short, a conviction on this count would not have been inevitable under my

interpretation of s. 273.1. Therefore, Ido not see Mr. Hutchinson’s conviction as being incongruent with Mr. Mabior’s acquittal (on one count). Farrar, J.A.’s Dissenting Reasons [66] Before concluding, I would like to briefly address my colleague Farrar, J.A.’s dissenting reasons undertwo headings. First, I will address his comments regarding the relationship between s. 273.1(1) and s. 265(3)(c). Then I will considerhis approach to s. 265(3)(c), had that been the appropriate provision. 1. Relationship of ss. 273.1(1) and 265(3)(c) [67] First:

Section 273.1(1) states that, for the charge of sexual assault, “‘consent’ means ... the

voluntary agreement of the complainant to engage in the sexual activity in question ” . If there is no such consent, then it is unnecessary to consider s. 265(3)(c). If there is such consent, then, in cases of deception, the court moves to s. 265(3)(

c) and, if the complainant submitted because of fraud, then what otherwise would be consent is vitiated. [ 68 ] The threshold question is: What does s. 273.1(1) mean by “ the sexual activity in question ” ? [ 69 ] My colleague says “ the meaning of ‘ sexual activity ’ in s. 273.1(1) simply refers to the physical sex act and not to the conditions or quality of that act ” . In Mr. Hutchinson ’ s case, that would mean coitus, and nothing else. [ 70 ] In R. v. J.A. , supra , at ¶ 66, the Chief Justice for the majority said s. 273.1(1) requires consent “ throughout every phase of the sexual activity ” .

In my view, this is broader terminology than just the ultimate act of coitus, nothing else. [ 71 ] As I see it, the concept of “ sexual activity in question ” embodied by J.A. ’ s direction requires an analysis of the evidence to identify the essential features of whatever phases of sexual activity occurred on the occasion that is the subject of the charge. In one case, the evidence may establish that the only essential feature was intercourse. In another, the essential features may encompass more.

The feature must be a component of the sexual activity, and not an extraneous factor that merely affected motive to engage in the sexual activity. What is essential would depend on what factors affected the complainant ’ s subjective conditions, if any, for consent to that sexual activity.

These are factual matters that will vary from case to case. [ 72 ] 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. As noted, my view is consistent with Justice Goudge ’ s approach in R. v. Crangle , supra , leave to appeal refused [2010], S.C.C.A. No. 300, ¶ 20 and ¶ 23, and with Justice Major ’ s comments in R. v.

Ewanchuk , supra , ¶ 26-27, that consent, or its absence, is subjective. [ 73 ] It would be helpful therefore to apply that approach to the findings here. The judge said: ¶2 [N.C.] testified she and Mr. Hutchinson had sexual relations three to four times a week. They used condoms during sexual intercourse as birth control to prevent pregnancy. They did not use condoms during her menstrual period as it was her understanding she could not become pregnant while she was menstruating. They always used condoms during the time she could become pregnant. She would put the condoms on Mr.

Hutchinson which he enjoyed. ... ¶29 ... [N.C.] consented to sexual intercourse with Mr. Hutchinson. Until [N.C.] had the positive result from the home pregnancy test on September 5, 2006, the consent was for sexual intercourse with contraception (condoms) except during her menstrual period each month. During her menstrual periods and after the positive result from the September 5, 2006 home pregnancy test, the consent was for unprotected sexual intercourse. Mr. Hutchinson knew [N.C.] did not want to become pregnant. [N.C.] used contraception (condoms) at times she believed she was at risk of becoming pregnant.

Ms. did not consent to unprotected sexual intercourse with damaged condoms. ... ¶35 ... [N.C.] did not consent to unprotected sexual intercourse with damaged condoms. ... ¶44 There was no voluntary agreement of [N.C.] to the sexual activity in question, which was sexual intercourse without contraception.

... ¶47 Here Mr. Hutchinson intended to engage in sexual intercourse with [N.C.] using damaged condoms and he knew [N.C.] did not consent to sexual intercourse without contraception. [ 74 ] The evidence supported these findings. The judge made no palpable and overriding error of fact. [ 75 ] Given those findings, Mr. Hutchinson ’ s wearing of an unsabotaged condom during intercourse was an essential feature of his sexual activity with N.C.

N.C. did not consent, within s. 273.1(1), to sexual intercourse with perforated condoms. [ 76 ] Second: My colleague frames the question as “ which provision of the Criminal Code applies to determine the issue of consent ” - s. 273.1(1) or s. 265(3)(c) - and concludes that s. 265(3)(

c) is “ the right home for cases like this ” . The assumptions appear to be that it is one or the other, and in cases of deception s. 265(3)(

c) occupies the field, while s. 273.1(1) is interpreted to recede from view. [ 77 ] I disagree with those assumptions. If there is no “ agreement ” to the “ sexual activity in question ” under s. 273.1(1), then there is no “ consent ” even if deception precipitated the consensual failure. The meaning of “ sexual activity in question ” does not ebb and flow, case to case, depending on whether or not there was deception. Had Mr. Hutchinson lied to N.C. about something other than the sexual activity in which they engaged - for instance about a background fact such as his age or income - then there would be consent under s. 273.1(1), though subject to vitiation by fraud under s. 265(3)(

c) if there was a significant risk of serious bodily harm under R. v. Cuerrier , supra , ¶ 135. But Mr. Hutchinson chose a topic for his deception - wearing a condom during the act of intercourse - that was an essential feature of the sexual activity in question. That means he must deal with both ss. 273.1(1) and 265(3) (c), and cannot cite his deception to jettison s. 273.1(1). [ 78 ] Third: My colleague says that “ s. 273.1(1) can be relied upon where the complainant ’ s participation was involuntary , but there were no voluntariness issues in this case ” . With respect, this misses the point.

Section 273.1(1) requires “ voluntary agreement ” to the sexual activity in question. The provision requires both voluntariness and agreement. N.C. acted voluntarily. But she did not “ agree ” to sexual activity with sabotaged condoms. [ 79 ] Fourth: Justice Farrar says that “ [i]t was only after the fact, when she realized that the appellant had destroyed the condoms, that she decided to change her mind and ‘ retroactively revoke ’ her consent ” . I do not share that view of the trial judge ’ s finding. Before the sexual activity, N.C. made it clear that she was not consenting to unprotected sex.

She did not “ retroactively revoke ” or “ change her mind ” later. She just learned later that the condition precedent to her consent, from the outset, had not existed. [ 80 ] Fifth: My colleague cites the “ slippery slope ” of unwarranted or trivialized criminalization. [ 81 ] In my opinion, this criticism underestimates the traction of s. 273.1(1). Nothing in my approach would criminalize the type of case posited by Justice Cory in Cuerrier , ¶ 134-5 - e.g., where the accused lies about matters like age, employment or wealth.

Those deceptions would not involve essential features of the “ sexual activity in question ” . So they would not impugn consent under s. 273.1(1). Rather, they involve anterior facts outside the bedroom. The complainant ’ s belief in those anterior facts may affect the complainant ’ s motive to engage in the sexual activity.

But those deceptions would only vitiate consent if there is fraud under s. 265.3(c), which involves a significant risk of serious bodily harm according to Cuerrier and Mabior . [ 82 ] An absence of consent to an essential feature of the sexual activity, on the other hand, is precisely what s. 273.1(1) aims to criminalize. An un-tampered condom during the act of intercourse was an essential feature of the sexual activity here. 2. Risk of Serious Bodily Harm under s. 265(3)(c)

[83] At the same time, I agree with Justice Farrar’s view that pregnancy could involve a significant risk ofserious bodily harm to the mother, as s. 265(3)(

c) was interpreted by Justice Cory in Cuerrier, ¶135, and by Mabior. The trial judgesaid (¶54) that it was not established beyond a reasonable doubt that Mr. Hutchinson’s sabotage of the condoms caused Ms. C’spregnancy.

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