R. v. Hutchinson

R. v. Hutchinson
Collection
Supreme Court Judgments
Date
2014-03-07
Neutral citation
2014 SCC 19
Report
[2014] 1 SCR 346
Case number
35176
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
SCC Case Information: 35176
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Hutchinson. 2014 SCC 19, [2014] 1 S.C.R. 346
Date: 20140307
Docket: 35176
Between:
Craig Jaret Hutchinson
Appellant
and
Her Majesty The Queen
Respondent
- and -
Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario
Interveners
Coram: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 75)
Reasons Concurring in Result:
(paras. 76 to 104)
McLachlin C.J. and Cromwell J. (Rothstein and Wagner JJ. concurring)
Abella and Moldaver JJ. (Karakatsanis J. concurring)
R. v. Hutchinson. 2014 SCC 19, [2014] 1 S.C.R. 346
Craig Jaret Hutchinson Appellant
v.
Her Majesty The Queen Respondent
and
Canadian HIV/AIDS Legal Network and
HIV & AIDS Legal Clinic Ontario Interveners
Indexed as: R. v. Hutchinson
2014 SCC 19
File No.: 35176.
2013: November 8; 2014: March 7.
Present: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for nova scotia
Criminal law — Offences — Sexual assault — Consent — Complainant consenting to sexual activity with male partner unaware that he had sabotaged condom — Whether evidence establishing that there was no voluntary agreement of the complainant to engage in the sexual activity in question or whether complainant’s apparent consent was vitiated by fraud — Criminal Code, R.S.C. 1985, c. C-46, ss. 265(3) (c), 273.1(1) .
The complainant agreed to sexual activity with her partner, H, insisting that he use a condom in order to prevent conception. Unknown to her, H had poked holes in the condom and the complainant became pregnant. H was charged with aggravated sexual assault. The trial judge found that the complainant had not consented to unprotected sex and convicted H of sexual assault. On appeal, the majority upheld the conviction on the basis that condom protection was an “essential feature” of the sexual activity, and therefore the complainant did not consent to the “sexual activity in question”. The dissenting judge held that there was consent to the “sexual activity in question”, but that a new trial was required to determine whether consent was vitiated by fraud.
Held: The appeal should be dismissed.
Per McLachlin C.J. and Rothstein, Cromwell and Wagner JJ.: The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1) and it requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner. If the complainant consented, or her conduct raises a reasonable doubt about the lack of voluntary agreement to the sexual activity in question, the second step is to consider under ss. 265(3) and 273.1(2) whether there are any circumstances that may vitiate the complainant’s ostensible consent or participation. In this case, the main issue is whether condom sabotage resulted in there being no “voluntary agreement by the complainant to engage in the sexual activity in question” under s. 273.1(1) or whether the condom sabotage constituted fraud under s. 265(3) (c), with the result that no consent was obtained. Resolving this issue requires the Court to determine the meaning of the “sexual activity in question” in s. 273.1(1) .
There are essentially two approaches to determining the meaning of what constitutes voluntary agreement to the sexual activity in question and the role of mistake or deception in determining whether such agreement existed. The first approach defines the “sexual activity in question” as extending beyond the basic sexual activity the complainant thought she was consenting to at the time to conditions and qualities of the act or risks and consequences flowing from it, provided these conditions are “essential features” of the sexual activity or go to “how” the physical touching was carried out. The second approach defines “the sexual activity in question” more narrowly 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 under s. 273.1(1) . That voluntary agreement, however, may not be legally effective.
The primary tools of statutory construction including the plain words of the provisions, the scheme of the provisions and the legislative history support a narrow interpretation of the basic definition of consent in s. 273.1(1) . The jurisprudence and the provisions also support this interpretation. This Court has interpreted the fraud provision in s. 265(3) (c) of the Criminal Code in the context of HIV non‑disclosure cases: Cuerrier; Mabior. The adoption of the “essential features”/“how the act was carried out” approach would be inconsistent with the approach adopted in Cuerrier and Mabior and would put the outcome in those cases in question. Under the “essential features”/“how the act was carried out” approach, mistakes — they need not be deceptions — about conditions and qualities of the physical act will result in a finding of no consent under s. 273.1(1) even in the absence of risk of harm. For example, there would be no consent found under s. 273.1(1) in cases involving deception about HIV status, even where the accused had a low viral load and condom protection was used. Finally, adopting the “essential features” or “how the physical act was carried out” approach would re-introduce a vague and unclear test for consent, and could also criminalize conduct that lacks the necessary reprehensible character, casting the net of the criminal law too broadly.
Properly interpreted, voluntary agreement to the sexual activity in question in s. 273.1(1) means that the complainant must subjectively agree to the specific physical act itself, its sexual nature and the specific identity of the partner. The “sexual activity in question” does not include conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases. Here, the “sexual activity in question” was sexual intercourse and the complainant voluntarily agreed to it. On the question of whether her agreement to the “sexual activity in question” was vitiated by fraud, the dishonesty is evident and admitted. The only remaining issue is whether there was a sufficient deprivation to establish fraud. Where a complainant has chosen not to become pregnant, deceptions that expose her to an increased risk of becoming pregnant may constitute a sufficiently serious deprivation to vitiate consent under s. 265(3) (c). This application of “fraud” under s. 265(3) (c) is consistent with Charter values of equality and autonomy, while recognizing that not every deception that induces consent should be criminalized. In this case, there was no consent by reason of fraud, pursuant to s. 265(3) (c).
Per Abella, Moldaver and Karakatsanis JJ.: At its core, this case concerns the right recognized in R. v. Ewanchuk, [1999] 1 S.C.R. 330, to determine how sexual activity will take place. Society’s commitment to protecting a person’s autonomy and dignity requires that individuals have the right to determine who touches their body, and how the touching will occur. This protection underlies the definition of consent set out in s. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”. Consent to the “sexual activity in question” necessarily means the complainant’s voluntary agreement both to engage in touching of a sexual nature and to the manner in which that touching is carried out. The starting point for the analysis of consent under the actus reus of sexual assault is s. 273.1(1) . When a complainant does not voluntarily agree to the sexual activity which occurred, consent does not exist within the meaning of s. 273.1(1) , and the inquiry for the purposes of the actus reus of sexual assault is complete. If there is no consent ab initio, it is pointless to inquire whether there was fraud under s. 265(3) (c) which would have vitiated the complainant’s consent. In other words, without voluntary agreement as to the “how” — the manner in which the sexual activity in question occurred — there is no consent within the meaning of s. 273.1(1) .
Unlike under s. 265(3) (c), which requires both a dishonest act and a deprivation, consent under s. 273.1(1) has never required an analysis of the risks or consequences caused by unwanted sexual touching. It is the unwanted nature of non-consensual sexual activity that violates the complainant’s sexual integrity and gives rise to culpability under the criminal law, not just the risk of further harm that the sexual touching may create. Requiring an analysis of the risks or consequences of non-consensual touching by applying s. 265(3) (c) whenever deception is later discovered, adds a barrier to the simple ability to demonstrate whether the activity which occurred was agreed to when it occurred. It thereby undermines the values of personal autonomy and physical integrity sought to be protected by making sexual assault an offence.
It does not follow that because a condom is a form of birth control, it is not also part of the sexual activity. Removing the use of a condom from the meaning of sexual activity in s. 273.1(1) because the condom may have been intended for contraceptive purposes, means that an individual has no right to require the use of a condom during intercourse where pregnancy is not at issue. All individuals must have an equal right to determine how they are touched, regardless of gender, sexual orientation, reproductive capacity, or the type of sexual activity they choose to engage in. By any definition, when someone uses a condom, it is part of the sexual activity. It is therefore part of what is — or is not — consented to. When individuals agree to sexual activity with a condom, they mean an intact condom. They are not merely agreeing to a sexual activity, they are agreeing to how it should take place. That is what s. 273.1(1) was intended to protect.
A person consents to how she will be touched, and she is entitled to decide what sexual activity she agrees to engage in for whatever reason she wishes. The fact that some of the consequences of her motives are more serious than others, such as pregnancy, does not in the slightest undermine her right to decide how the sexual activity she chooses to engage in is carried out. It is neither her partner’s business nor the state’s. The complainant’s voluntary agreement to the manner in which the sexual touching is carried out, requires the complainant’s consent to where on her body she was touched and with what. It does not, however, require consent to the consequences of that touching, or the characteristics of the sexual partner, such as age, wealth, marital status, or health. These consequences or characteristics, while undoubtedly potentially significant, are not part of the actual physical activity that is agreed to.
In this case, the question is not whether consent was vitiated by fraud. It is whether there was consent to the sexual activity in the first place. The complainant agreed to engage in sexual activity in a certain manner, that is, sexual intercourse with an intact condom. H deliberately sabotaged the condom without her knowledge or agreement. The fact that she only learned of the deliberate sabotaging after the sexual activity took place, is of no relevance. What is relevant is what sexual activity she agreed to engage in with H and whether he stuck to the bargain. In this case, he did not. Since the complainant did not agree to how she was touched at the time it occurred, consent within the meaning of s. 273.1(1) did not exist.
Cases Cited
By McLachlin C.J. and Cromwell J.
Discussed: R. v. Ewanchuk, [1999] 1 S.C.R. 330, rev’g 1998 ABCA 52, 57 Alta. L.R. (3d) 235; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; referred to: R. v. Clarence (1888), 22 Q.B.D. 23; R. v. Flattery (1877), 2 Q.B.D. 410; R. v. Dee (1884), 14 L.R. Ir. 468; R. v. G.C., 2010 ONCA 451, 266 O.A.C. 299, leave to appeal refused, [2010] 3 S.C.R. v; R. v. O.A., 2013 ONCA 581, 310 O.A.C. 305.
By Abella and Moldaver JJ.
Discussed: R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; referred to: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Chase (1984), 55 N.B.R. (2d) 97, rev’d [1987] 2 S.C.R. 293.
Statutes and Regulations Cited
Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125, s. 19.
Act to amend the Criminal Code (sexual assault), Bill C‑49, 3rd Sess., 34th Parl., 1991 (assented to June 23, 1992), S.C. 1992, c. 38, preamble.
Canadian Charter of Rights and Freedoms, ss. 7 , 15 .
Criminal Code, R.S.C. 1985, c. C‑46, ss. 265 , 268 , 271 , 273.1(1) “consent”, (2).
Criminal Code, 1892, S.C. 1892, c. 29, ss. 259(b), 266.
Authors Cited
Canada. House of Commons. House of Commons Debates, vol. IX, 3rd Sess., 34th Parl., June 15, 1992, pp. 12027‑28, 12041, 12043, 12045.
Falk, Patricia J. “Rape by Fraud and Rape by Coercion” (1998), 64 Brook. L. Rev. 39.
Feinberg, Joel. “Victims’ Excuses: The Case of Fraudulently Procured Consent” (1986), 96 Ethics 330.
Fischer, David A. “Fraudulently Induced Consent to Intentional Torts” (1977), 46 U. Cin. L. Rev. 71.
Hooper, Anthony. “Fraud in Assault and Rape” (1968), 3 U.B.C. L. Rev. 117.
Perkins, Rollin M., and Ronald N. Boyce. Criminal Law, 3rd ed. Mineola, N.Y.: Foundation Press, 1982.
Puttkammer, Ernst Wilfred. “Consent in Rape” (1924‑1925), 19 Ill. L. Rev. 410.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
Wertheimer, Alan. Consent to Sexual Relations. Cambridge: Cambridge University Press, 2003.
Westen, Peter. The Logic of Consent: The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct. Burlington, Vt.: Ashgate, 2004.
APPEAL from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S. and Oland, Hamilton, Fichaud and Farrar JJ.A.), 2013 NSCA 1, 325 N.S.R. (2d) 95, 1031 A.P.R. 95, 296 C.C.C. (3d) 22, 1 C.R. (7th) 1, 274 C.R.R. (2d) 254, [2013] N.S.J. No. 1 (QL), 2013 CarswellNS 22, affirming the conviction for sexual assault entered by Coughlan J., 2011 NSSC 361, 311 N.S.R. (2d) 1, 985 A.P.R. 1, [2011] N.S.J. No. 723 (QL), 2011 CarswellNS 935. Appeal dismissed.
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.
The judgment of McLachlin C.J. and Rothstein, Cromwell and Wagner JJ. was delivered by
The Chief Justice and Cromwell J. —
I. Introduction
[1] Control over the sexual activity one engages in lies at the core of human dignity and autonomy: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 28. This principle underlies the offences of assault and sexual assault. Sexual activity without consent is a crime under the Criminal Code, R.S.C. 1985, c. C-46 .
[2] In this case, the complainant consented to sexual activity with a condom to prevent conception. Unknown to her at the time, her partner, Mr. Hutchinson, poked holes in the condom and the complainant became pregnant. Mr. Hutchinson was charged with aggravated sexual assault. The complainant said that she did not consent to unprotected sex. The trial judge agreed and convicted Mr. Hutchinson of sexual assault (2011 NSSC 361, 311 N.S.R. (2d) 1). The majority of the Nova Scotia Court of Appeal, per MacDonald C.J.N.S., upheld the conviction on the basis that condom protection was an essential feature of the sexual activity, and therefore the complainant did not consent to the “sexual activity in question”. Farrar J.A., dissenting, held that there was consent to the sexual activity, but that a new trial was required to determine whether consent was vitiated by fraud (2013 NSCA 1, 325 N.S.R. (2d) 95).
[3] The immediate problem is how cases such as this fall to be resolved under the provisions of the Criminal Code . This is an issue of statutory interpretation. Underlying this is a broader question — where should the line between criminality and non-criminality be drawn when consent is the result of deception?
[4] The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1) . If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3) (a) and (b)), fraud (s. 265(3) (c)), or abuse of trust or authority (ss. 265(3) (d) and 273.1(2) (c)).
[5] We conclude that the first step requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner. Mistakes on the complainant’s part (however caused) in relation to other matters, such as whether the partner is using effective birth control or has a sexually transmitted disease, are not relevant at this stage. However, mistakes resulting from deceptions in relation to other matters may negate consent at the second stage of the analysis, under the fraud provision in s. 265(3) (c) of the Criminal Code .
[6] Applying this template to the facts in this case leads us to conclude that, at the first step, the complainant voluntarily agreed to the sexual activity in question at the time that it occurred. The question is whether that consent was vitiated because she had been deceived as to the condition of the condom. This question is addressed at the second step. The accused’s condom sabotage constituted fraud within s. 265(3) (c), with the result that no consent was obtained. We would therefore affirm the conviction and dismiss the appeal.
II. The Provisions of the Criminal Code
[7] Section 265(1) of the Criminal Code establishes the general offence of 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.
[8] Section 265(2) states that this section applies to all forms of assault, including sexual assault.
[9] The offence of sexual assault is created by s. 271 :
271. Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.
[10] Section 273.1(1) defines “consent” as follows:
273.1 (1) Subject to subsection (2) and subsection 265(3) , “consent” means, for the purposes of sections 271 , 272 and 273 , the voluntary agreement of the complainant to engage in the sexual activity in question.
[11] These provisions define the basic offence of sexual assault. They are supplemented by two additional sets of provisions which give a non-exhaustive list of circumstances in which no consent is obtained. Section 265(3) , which applies to all assaults, lists four such situations involving the accused’s abuse of authority and use of force, fear and fraud:
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.
[12] Section 273.1(2) lists five non-exhaustive situations where no consent is obtained for purposes of the sexual assault offences:
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 to engage in the activity.
[13] Section 273.1(1) makes the definition of “consent” for the purposes of sexual assault “[s]ubject to” subsection (2) and to s. 265(3) . Thus, s. 273.1(1) does not replace the circumstances of no consent in ss. 273.1(2) and 265(3) . Fraud, for example, continues to negate consent to sexual assault, pursuant to s. 265(3) (c).
III. Issue
[14] The main issue here is whether the Crown proved that the complainant did not consent to the sexual touching by the appellant. Did the condom sabotage, as the majority of the Court of Appeal held, result in there being no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1) of the Criminal Code ? Or should the condom sabotage be analyzed, as the dissenting judge in the Court of Appeal concluded, under the fraud provision in s. 265(3) (c) of the Criminal Code ?
[15] Resolving this issue requires this Court to determine the meaning of the “sexual activity in question” in s. 273.1(1) .
[16] The basic rule of statutory interpretation is that “the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 1. The task is to determine the intent of Parliament, insofar as this can be done, by looking at the words used and the scheme and object of the provision. Every part of a provision or set of provisions should be given meaning if possible: Sullivan, at p. 210.
IV. Analysis
A. Sexual Autonomy and the Criminal Law: Overview
[17] 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: Ewanchuk, at paras. 25-26. 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. (We note that this is a case of apparent agreement — the complainant subjectively agreed at the time sexual intercourse occurred. This is not a case where there was no such agreement. The question is whether, in spite of that agreement, no consent was obtained in law because that agreement was obtained as a result of Mr. Hutchinson’s deceit about the condition of the condom.) Individually and collectively, these features of sexual assault law protect Canadians’ sexual autonomy.
[18] But the law has long recognized that there are limits on how completely it may fulfil that objective through the blunt instrument of the criminal law. As the most serious interference by the state with peoples’ lives and liberties, the criminal law should be used with appropriate restraint, to avoid over-criminalization. It draws a line between conduct deserving the harsh sanction of the criminal law, and conduct that is undesirable or unethical but “lacks the reprehensible character of criminal acts”: R. v. Cuerrier, [1998] 2 S.C.R. 371, at para. 133; A. Wertheimer, Consent to Sexual Relations (2003). The companion of restraint is certainty. The criminal law must provide fair notice of what is prohibited and clear standards for enforcement: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 14 and 19.
[19] The need for restraint and certainty, which sometimes work at cross-purposes to absolute protection of sexual autonomy, has influenced the law’s approach to consent, particularly where consent has been obtained by deception.
B. Interpreting the Provisions: Two Approaches
[20] There are essentially two approaches to the question of what constitutes “voluntary agreement . . . to . . . the sexual activity in question” and the role of mistake or deception in determining whether such agreement existed.
[21] The first approach, which has many variants, defines the “sexual activity in question” as extending beyond the basic sexual activity the complainant thought she was consenting to at the time to conditions and qualities of the act or risks and consequences flowing from it, provided these conditions are “essential features” of the sexual activity (reasons of the majority of the Court of Appeal, at paras. 71 and 81) or go to “how” the physical touching was carried out (reasons of Abella and Moldaver JJ.). Under this approach, whether a complainant’s mistake prevents voluntary agreement to the sexual activity under s. 273.1(1) depends on the nature of the mistake. The difficulty with this approach, as we shall see, is that it provides no clear line between mistakes that result in no consent under s. 273.1(1) , and mistakes that do not. The result of this lack of clarity may be inappropriate criminalization and uncertainty in the law.
[22] The second approach defines the “sexual activity in question” more narrowly 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 under s. 273.1(1) of the Criminal Code . That voluntary agreement, however, may not be legally effective. The Code also sets out a number of situations in which, notwithstanding apparent agreement, no consent is obtained. In particular, deceptions may negate consent if they meet the requirements for fraud under s. 265(3) (c).
[23] The choice between these approaches is a matter of statutory construction. Which approach is correct depends on (1) the wording, scheme and object of the provisions of the Criminal Code ; (2) the jurisprudence on the provisions and their common law predecessors; and (3) the underlying objectives of the criminal law. We will consider each of these in turn.
(1) The Wording, Scheme and Object of the Legislation and the Scheme of the Provisions
[24] The plain words of the provisions, read in their ordinary and natural sense, support a narrow interpretation of the basic definition of “consent” in s. 273.1(1) . The ordinary meaning of the “sexual activity in question” is the physical act agreed to; there is nothing in the wording to suggest that it includes the conditions or qualifications of the sexual act.
[25] The scheme of the provisions — a basic definition of “consent” in s. 273.1(1) , coupled with circumstances vitiating such agreement in s. 265(3) and s. 273.1(2) — also supports a narrow interpretation of “voluntary agreement . . . to . . . the sexual activity in question”.
[26] The “essential features” approach of the Court of Appeal and the “how the physical act is carried out” approach of Abella and Moldaver JJ. do not conform to this two-part scheme. The fraud provision in s. 265(3) (c) deals with situations where consent to the sexual activity has been given because of a deception by the accused. But under these approaches, all deceptions about “essential features” of the sexual activity or about “how” the sexual activity was carried out would result in a finding of no consent to the “sexual activity in question” under s. 273.1(1) . Many deceptions would be dealt with at the first step under s. 273.1(1) , rather than where the scheme of the Criminal Code suggests they should be dealt with, under s. 265(3) (c). Section 273.1(1) would do most of the work that the fraud provision was intended to do, rendering the fraud provision in s. 265(3) (c) redundant in many cases, contrary to the principle that every word and provision in a statute has a meaning and a function.
[27] Finally, the object of s. 273.1, as revealed by its legislative history, does not support a broad reading of the “sexual activity in question”. The definition of “consent” in s. 273.1 was part of a parcel of amendments added to the Criminal Code in 1992, intended to address Parliament’s concerns about sexual violence against women and children and to promote and ensure the full protection of s. 7 and s. 15 Charter rights (see the preamble to Bill C-49, containing the 1992 Criminal Code amendments, S.C. 1992, c. 38). The centerpiece of the revisions was a new provision narrowing the defence of honest belief of consent. An accused who chooses to rely on the defence of honest belief of consent is required to take reasonable steps to ascertain that the complainant was consenting. Parliament’s intention was to “overcome the apparent unwillingness by some to let go of the debunked notion that unless a complainant physically resisted or expressed verbal opposition to sexual activity, an accused was entitled to assume that consent existed”: R. v. Ewanchuk, 1998 ABCA 52, 57 Alta. L.R. (3d) 235, at para. 58. Section 273.1 therefore signalled that the focus should be on whether the complainant positively affirmed her consent to the “sexual activity in question”. There was no suggestion that Parliament intended to expand the notion of “sexual activity” by including not only the sexual act for which consent is required, but also potentially infinite collateral conditions, such as the state of the condom.
[28] In summary, the primary tools of statutory construction all point to a rejection of the broad interpretation of the “sexual activity in question” under the “essential features”/“how the act was carried out” approach.
(2) The Jurisprudence
[29] This Court has interpreted the fraud provision in s. 265(3) (c) of the Criminal Code in the context of HIV non-disclosure cases: Cuerrier; Mabior. In our view, adoption of the “essential features”/“how the act was carried out” approach would put the outcomes in those cases in question and replace the clarity and restraint achieved by those decisions with confusion and over-criminalization.
[30] Initially, the common law of fraud in sexual relations focussed on the nature of the deceit and asked whether it went to certain “essential” characteristics of the act. If the deception went to the sexual nature of the act or the identity of the partner, it was said to vitiate consent: R. v. Clarence (1888), 22 Q.B.D. 23 (Cr. Cas. Res.). This test was incorporated into Canada’s first Criminal Code in 1892 (S.C. 1892, c. 29). Parliament restricted deceptions vitiating consent to “false and fraudulent representations as to the nature and quality of the act” (ss. 259(b) and 266). The formulation, however, did little to bring certainty or rationality to the law of consent to sexual activity. The problem was where and how to draw the line between those aspects of the sexual activity that went to the “nature and quality of the act” and those that did not: A. Hooper, “Fraud in Assault and Rape” (1968), 3 U.B.C. L. Rev. 117, at p. 121. Simply put, the “nature and quality of the act” did not show courts where to draw the line — or even help them to do so — between deceptions that did and did not vitiate consent.
[31] In view of this unsatisfactory state of affairs, the Criminal Code in relation to sexual offences was overhauled in 1983. In 1983, the language of the “nature and quality of the act” was dropped and the language of the present s. 265(3) (c) was adopted so that “no consent is obtained where the complainant submits or does not resist by reason of . . . fraud” — without any specification of the nature of the deception (S.C. 1980-81-82-83, c. 125, s. 19).
[32] While for a time Canadian courts continued to apply a restrictive interpretation of fraud, influenced by the earlier jurisprudence concerning the “false and fraudulent representations as to the nature and quality of the act”, the law of fraud in relation to sexual assault, as we shall see, had a new beginning in Canadian law with the Court’s judgment in Cuerrier.
[33] Three aspects of Cuerrier are particularly important. First, the majority held that the concept of fraud in the new s. 265(3) (c) was not restricted to deceptions as to the nature and quality of the act: para. 108. The former jurisprudence was rejected as being too restrictive, but at the same time, the majority recognized that some limitations on the concept of fraud are clearly necessary: para. 135.
[34] Second, the majority introduced an analysis of fraud that required two elements to be present before consent was vitiated by fraud: deceit and injury or, expressed differently, dishonesty and deprivation or risk of deprivation: Cuerrier, at paras. 110-16. With only two narrow exceptions that we will discuss shortly, 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: paras. 125-39. As Cory J. wrote for the majority, at para. 135:
The existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action. However, it should not provide the foundation for a conviction for sexual assault. The fraud required to vitiate consent for that offence must carry with it the risk of serious harm. [Emphasis added.]
[35] Third, the majority accepted that the traditional notion of fraud in relation to the nature and quality of the act and the identity of the partner would continue to vitiate consent: Cuerrier, at para. 118. We understand this to mean that deceptions in relation to the sexual nature of the act and the identity of the partner (narrowly defined) vitiate consent without proof that the sexual activity gave rise to the risk of serious bodily harm.
[36] The basic architecture of this approach was very recently approved by the Court in Mabior. The Court said:
. . . the Cuerrier approach is in principle valid. It carves out an appropriate area for the criminal law — one restricted to “significant risk of serious bodily harm”. It reflects the Charter values of autonomy, liberty and equality, and the evolution of the common law, appropriately excluding the Clarence line of authority. The test’s approach to consent accepts the wisdom of the common law that not every deception that leads to sexual intercourse should be criminalized, while still according consent meaningful scope. [Emphasis added; para. 58.]
[37] The Court in Mabior explained how the Cuerrier test applies to deceptions about HIV status. The Court concluded that HIV non-disclosure will not vitiate consent under s. 265(3) (c) if (1) the accused’s viral load at the time of sexual relations was low; and (2) condom protection was used. Notably, voluntary agreement to the sexual activity, under s. 273.1(1) was not in issue; the case proceeded on the basis that there had been subjective consent to the sexual touching at the time it had occurred and the only issue was whether fraud vitiated consent under s. 265(3) (c).
[38] An approach that asks whether the deception went to an “essential feature” of the act or “how the sexual act was carried out” is inconsistent with the Court’s approach in Cuerrier and Mabior. Consider two hypotheticals. In the first, the accused lies about the fact that the condom has holes in it so that the complainant who insists that he uses a condom will consent to the sexual activity. In the second, the accused lies about his HIV status so that the complainant will consent to have sex without a condom. From a legal perspective, what is the difference between, on one hand, deceiving the complainant about the condition of the condom and creating a risk of pregnancy, and on the other hand, deceiving the complainant about HIV status so that she will agree to unprotected sex? Since Cuerrier, it is clear that the latter situation must be analyzed under the fraud provision in s. 265(3) (c) of the Criminal Code . Why then not the former? Consistency and certainty in the law require that both situations be treated the same.
[39] Both the Court of Appeal majority’s approach and the approach proposed by Abella and Moldaver JJ. are also fundamentally at odds with the holdings in Cuerrier and Mabior that apparent consent is vitiated by fraud only where there is both deception and deprivation. Under the Court of Appeal’s approach and that of our colleagues, mistakes — they need not be deceptions — about conditions and qualities of the physical act will result in a finding of no consent under s. 273.1(1) even in the absence of harm or risk of harm. This is contrary to the fundamental point made in Cuerrier and affirmed in Mabior: “The fraud required to vitiate consent for that offence must carry with it the risk of serious harm” (Cuerrier, at para. 135).
[40] These inconsistencies are not merely semantic — they may affect outcomes under the “essential features”/“how the act was carried out” approach. HIV status may well be an “essential feature” of the sexual activity under the Court of Appeal majority’s approach. It could also be characterized as part of the “how” under Abella and Moldaver JJ.’s approach. If the use of an intact condom goes to the manner in which the sexual activity occurred, why not the exchange of diseased fluids? Thus, under these approaches, deceptions about HIV status could result in a finding of no consent under s. 273.1(1) , even where the accused had a low viral load at the relevant time and condom protection was used. That conclusion, however, would be in direct conflict with Cuerrier and Mabior.
[41] In short, adopting the “essential features”/“how the act was carried out” approaches would make the law inconsistent, highly formalistic and unduly uncertain. The law would be inconsistent because there is no reason in principle to analyze a case of a lie that obtains consent to unprot