R. v. Mabior

R. v. Mabior
Collection
Supreme Court Judgments
Date
2012-10-05
Neutral citation
2012 SCC 47
Report
[2012] 2 SCR 584
Case number
33976
Judges
McLachlin, Beverley; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache
On appeal from
Manitoba
Subjects
Criminal law
Notes
SCC Case Information: 33976
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584
Date: 20121005 Docket: 33976
Between:
Her Majesty The Queen
Appellant
and
Clato Lual Mabior
Respondent
- and -
Canadian HIV/AIDS Legal Network, HIV & AIDS Legal Clinic Ontario, Coalition des organismes communautaires québécois de lutte contre le sida, Positive Living Society of British Columbia, Canadian AIDS Society, Toronto People With AIDS Foundation, Black Coalition for AIDS Prevention, Canadian Aboriginal AIDS Network, British Columbia Civil Liberties Association, Criminal Lawyers’ Association of Ontario, Association des avocats de la défense de Montréal and Institut national de santé publique du Québec
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
Reasons for Judgment: (paras. 1 to 110)
McLachlin C.J. (LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. concurring)
R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584
Her Majesty The Queen Appellant
v.
Clato Lual Mabior Respondent
and
Canadian HIV/AIDS Legal Network,
HIV & AIDS Legal Clinic Ontario, Coalition des organismes communautaires québécois de lutte contre le sida, Positive Living Society of British Columbia, Canadian AIDS Society, Toronto People With AIDS Foundation,
Black Coalition for AIDS Prevention, Canadian Aboriginal AIDS Network,
British Columbia Civil Liberties Association,
Criminal Lawyers’ Association of Ontario,
Association des avocats de la défense de Montréal and
Institut national de santé publique du Québec Interveners
Indexed as: R. v. Mabior
2012 SCC 47
File No.: 33976.
2012: February 8; 2012: October 5.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for manitoba
Criminal law — Aggravated assault — Consent — Fraud — Non‑disclosure of HIV status — Accused undergoing antiretroviral therapy and having protected and unprotected sexual relations knowing he was HIV‑positive — Whether approach outlined in R. v. Cuerrier, [1998] 2 S.C.R. 371, remains valid in determining whether fraud vitiates consent to sexual relations — Whether non‑disclosure of HIV status in circumstances where no realistic possibility of transmission exists can constitute fraud vitiating consent — Criminal Code, R.S.C. 1985, c. C‑46, ss. 265(3) (c), 268 , 273 .
M was charged with nine counts of aggravated sexual assault based on his failure to disclose his HIV‑positive status to nine complainants before having sex with them (ss. 265(3)(c) and 273 Cr. C.). None of the complainants contracted HIV. The trial judge convicted him on six of the counts and acquitted him on the other three, on the basis that sexual intercourse using a condom when viral loads are undetectable does not place a sexual partner at “significant risk of serious bodily harm”, as required by Cuerrier. The Court of Appeal varied the decision, holding that either low viral loads or condom use could negate significant risk. This reduced to two the counts on which M could be convicted, and the Court of Appeal entered acquittals on the four remaining counts. The Crown appealed the acquittals.
Held: The appeal should be allowed in part and the convictions in respect of the complaints by S.H., D.C.S. and D.H. should be restored. The appeal should be dismissed in respect of the complaint by K.G.
This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud vitiating consent to sexual relations under s. 265(3)(c) Cr. C. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault (s. 273 Cr. C.). To obtain a conviction under ss. 265(3)(c) and 273, the Crown must show, beyond a reasonable doubt, that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. The test boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm). Failure to disclose may amount 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.
Two main criticisms of the Cuerrier test have been advanced: first, that it is uncertain, failing to draw a clear line between criminal and non‑criminal conduct, and second, that it either overextends the criminal law or confines it too closely — the problem of breadth. While it may be difficult to apply, 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”. 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.
The Cuerrier requirement of “significant risk of serious bodily harm” should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV. This view is supported by the common law and statutory history of fraud vitiating consent to sexual relations, and is in line with Charter values of autonomy and equality that respect the interest of a person to choose whether to consent to sex with a particular person or not. It also gives adequate weight to the nature of the harm involved in HIV transmission, and avoids setting the bar for criminal conviction too high or too low. If there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexual relations under s. 265(3)(c).
The evidence adduced in this case leads to the conclusion that, as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used. This general proposition does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play.
Here, the four complainants all consented to sexual intercourse with M, and testified that they would not have had sex with him had they known he was HIV‑positive. M had intercourse by vaginal penetration with the four complainants, during which he ejaculated. At the time of intercourse with the complainants S.H., D.C.S. and D.H., M had a low viral load but did not use a condom. Consequently, those convictions should be maintained. As regards K.G., the record shows that M’s viral load was low. When combined with condom protection, this did not expose K.G. to a significant risk of serious bodily harm. This conviction must accordingly be reversed.
Cases Cited
Applied: R. v. Cuerrier, [1998] 2 S.C.R. 371; referred to: R. v. D.C., 2012 SCC 48, [2012] 2 S.C.R. 626; Proprietary Articles Trade Association v. Attorney‑General for Canada, [1931] A.C. 310; Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, aff’d [1951] A.C. 179; Lord’s Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497; The Queen v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Boggs v. The Queen, [1981] 1 S.C.R. 49; Skoke‑Graham v. The Queen, [1985] 1 S.C.R. 106; R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; The Queen v. Clarence (1888), 22 Q.B.D. 23; R. v. Flattery (1877), 13 Cox C.C. 388; R. v. Dee (1884), 15 Cox C.C. 579; R. v. Bennett (1866), 4 F. & F. 1105, 176 E.R. 925; R. v. Sinclair (1867), 13 Cox C.C. 28; Hegarty v. Shine (1878), 14 Cox C.C. 124, aff’d 14 Cox C.C. 145; Papadimitropoulos v. The Queen (1957), 98 C.L.R. 249; R. v. Harms (1943), 81 C.C.C. 4; Bolduc v. The Queen, [1967] S.C.R. 677; R. v. Petrozzi (1987), 35 C.C.C. (3d) 528; R. v. Lee (1991), 3 O.R. (3d) 726; R. v. Ssenyonga (1993), 81 C.C.C. (3d) 257; State v. Marcks, 41 S.W. 973 (1897), and 43 S.W. 1095 (1898); State v. Lankford, 102 A. 63 (1917); United States v. Johnson, 27 M.J. 798 (1988); United States v. Dumford, 28 M.J. 836 (1989); R. v. Maurantonio, [1968] 1 O.R. 145; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. B., [2006] EWCA Crim 2945, [2007] 1 W.L.R. 1567; R. v. Mwai, [1995] 3 N.Z.L.R. 149; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458; Twining v. Morrice (1788), 2 Bro. C.C. 326, 29 E.R. 182; Conolly v. Parsons (1797), 3 Ves. 625n; Walters v. Morgan (1861), 3 De G. F. & J. 718, 45 E.R. 1056; R. v. McCraw, [1991] 3 S.C.R. 72; R. v. Jones, 2002 NBQB 340, [2002] N.B.J. No. 375 (QL); R. v. J.A.T., 2010 BCSC 766 (CanLII).
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.
Canadian Charter of Rights and Freedoms , s. 7 .
Crimes Act 1958 (Vic.), ss. 22, 23.
Crimes Act 1961 (N.Z.), 1961, No. 43, ss. 145, 188(2).
Criminal Code , R.S.C. 1985, c. C‑46, ss. 265 , 268 , 271(1) , 273 .
Criminal Code, 1892, S.C. 1892, c. 29, ss. 259(b), 266.
Criminal Code Act (N.T.), ss. 174C, 174D.
Criminal Law Consolidation Act 1935 (S.A.), s. 29.
Offences against the Person Act, 1861 (U.K.), 24 & 25 Vict., c. 100, ss. 18, 20.
Authors Cited
Bingham, Tom. The Rule of Law. London: Allen Lane, 2010.
Boily, Marie‑Claude, et al. “Heterosexual risk of HIV‑1 infection per sexual act: systematic review and meta‑analysis of observational studies” (2009), 9 Lancet Infect. Dis. 118.
Burris, Scott, et al. “Do Criminal Laws Influence HIV Risk Behavior? An Empirical Trial” (2007), 39 Ariz. St. L.J. 467.
Cohen, Myron S., et al. “Prevention of HIV‑1 Infection with Early Antiretroviral Therapy” (2011), 365 New Eng. J. Med. 493.
Grant, Isabel. “The Prosecution of Non‑disclosure of HIV in Canada: Time to Rethink Cuerrier” (2011), 5 M.J.L.H. 7.
Leigh, L. H. “Two cases on consent in rape” (2007), 5 Arch. News 6.
Nightingale, Brenda L. The Law of Fraud and Related Offences. Scarborough, Ont.: Carswell, 1996 (loose‑leaf updated 2011, release 3).
Wainberg, Mark A. “Criminalizing HIV transmission may be a mistake” (2009), 180 C.M.A.J. 688.
Weller, Susan C., and Karen Davis‑Beaty. “Condom effectiveness in reducing heterosexual HIV transmission” (2002), 1 Cochrane Database Syst. Rev. CD003255.
APPEAL from a judgment of the Manitoba Court of Appeal (Steel, MacInnes and Beard JJ.A.), 2010 MBCA 93, 258 Man. R. (2d) 166, 261 C.C.C. (3d) 520, 79 C.R. (6th) 1, [2011] 2 W.W.R. 211, [2010] M.J. No. 308 (QL), 2010 CarswellMan 587, setting aside convictions for aggravated sexual assault entered by McKelvey J., 2008 MBQB 201, 230 Man. R. (2d) 184, [2008] M.J. No. 277 (QL), 2008 CarswellMan 406. Appeal allowed in part.
Elizabeth Thomson and Ami Kotler, for the appellant.
Amanda Sansregret and Corey La Berge, for the respondent.
Jonathan Shime, Corie Langdon, Richard Elliott and Ryan Peck, for the interveners the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario, Coalition des organismes communautaires québécois de lutte contre le sida, the Positive Living Society of British Columbia, the Canadian AIDS Society, the Toronto People With AIDS Foundation, the Black Coalition for AIDS Prevention and the Canadian Aboriginal AIDS Network.
Michael A. Feder and Angela M. Juba, for the intervener the British Columbia Civil Liberties Association.
P. Andras Schreck and Candice Suter, for the intervener the Criminal Lawyers’ Association of Ontario.
François Dadour, for the intervener Association des avocats de la défense de Montréal.
Lucie Joncas and François Côté, for the intervener Institut national de santé publique du Québec.
The judgment of the Court was delivered by
The Chief Justice —
I. Overview
[1] This case raises the issue of whether an HIV-positive person who engages in sexual relations without disclosing his condition commits aggravated sexual assault.
[2] Sex without consent is sexual assault under s. 265 of the Criminal Code , R.S.C. 1985, c. C-46 . R. v. Cuerrier, [1998] 2 S.C.R. 371, establishes that failure to advise a partner of one’s HIV status may constitute fraud vitiating consent. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault, attracting a maximum sentence of life imprisonment: Cuerrier, at para. 95; ss. 265, 268 and 273 Cr. C.
[3] While Cuerrier laid down the basic requirements for the offence, the precise circumstances when failure to disclose HIV status vitiates consent and converts sexual activity into a criminal act remain unclear. The parties ask this Court for clarification.
[4] I conclude that a person may be found guilty of aggravated sexual assault under s. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted. If the HIV-positive person has a low viral count as a result of treatment and there is condom protection, the threshold of a realistic possibility of transmission is not met, on the evidence before us.
II. Background
[5] The respondent, Mr. Mabior, lived in Winnipeg. His house was a party place. People came in and out, including a variety of young women. Alcohol and drugs were freely dispensed. From time to time, Mr. Mabior had sex with women who came to his house, including the nine complainants in this case.
[6] Mr. Mabior did not tell the complainants that he was HIV-positive before having sex with them; indeed, he told one of them that he had no STDs. On some occasions, he wore condoms, on others he did not. Sometimes the condoms broke or were removed, and in some cases, the precise nature of the protections taken is unclear. Eight of the nine complainants testified that they would not have consented to sex with Mr. Mabior had they known he was HIV-positive. None of the complainants contracted HIV.
[7] Mr. Mabior was charged with nine counts of aggravated sexual assault (and other related offences), based on his failure to disclose to the complainants that he was HIV-positive. In defence, Mr. Mabior called evidence that he was under treatment, and that he was not infectious or presented only a low risk of infection at the relevant times.
[8] The trial judge convicted Mr. Mabior of six counts of aggravated sexual assault (2008 MBQB 201, 230 Man. R. (2d) 184). She acquitted him on the other three, on the basis that sexual intercourse using a condom when viral loads are undetectable does not place a sexual partner at “significant risk of serious bodily harm”, as required by Cuerrier.
[9] Mr. Mabior appealed from these six convictions; the Crown did not appeal from the three acquittals. The Manitoba Court of Appeal varied the trial judge’s decision, holding that either low viral loads or condom use could negate significant risk (2010 MBCA 93, 258 Man. R. (2d) 166). This reduced to two the counts on which Mr. Mabior could be convicted, and the Court of Appeal entered acquittals on the four remaining counts. The Crown appeals these acquittals. Mr. Mabior has not cross-appealed against the two convictions upheld by the Court of Appeal.
III. The Legislation
[10] Sections 265 and 273 of the Criminal Code provide:
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;
. . .
(2) This section applies to all forms of assault, including sexual assault . . . and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
. . .
(c) fraud;
. . .
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
. . .
(b) in any other case, to imprisonment for life.
IV. The Issues
[11] The issues are as follows:
A. What is the correct interpretation of “fraud” vitiating consent to sexual activity in s. 265(3) (c) of the Criminal Code ?
(1) Problems with the existing interpretation of “fraud” vitiating consent:
(a) Uncertainty;
(b) Breadth.
(2) Guides to interpretation:
(a) The purposes of the criminal law;
(b) The common law and statutory history of fraud vitiating consent to sexual relations;
(c) Charter values;
(d) The experience of other common law jurisdictions.
(3) Finding a solution:
(a) The active misrepresentation approach;
(b) The absolute disclosure approach;
(c) A case-by-case fact-based approach;
(d) Judicial notice;
(e) Relationship-based distinctions;
(f) The reasonable partner approach;
(g) An evolving common law approach.
(4) Realistic possibility of HIV transmission.
V. Discussion
A. What is the Correct Interpretation of “Fraud” Vitiating Consent to Sexual Activity in Section 265(3) (c) of the Criminal Code ?
(1) Problems With the Existing Interpretation of “Fraud” Vitiating Consent
[12] This Court considered “fraud” under s. 265(3)(c) 14 years ago in Cuerrier. The majority test in Cuerrier may be stated in different ways, but boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused her to refuse sexual relations that exposed her to a significant risk of serious bodily harm).
[13] We are invited to revisit the Cuerrier test by the parties and by the Manitoba Court of Appeal in this case and the Quebec Court of Appeal in the companion case of R. v. D.C., 2012 SCC 48, [2012] 2 S.C.R. 626. Two main criticisms of the Cuerrier test are advanced: first, that it is uncertain, failing to draw a clear line between criminal and non-criminal conduct (uncertainty), and second, that it either overextends the criminal law or confines it too closely — the problem of breadth.
[14] I turn first to the criticism that the Cuerrier test is uncertain. It is a fundamental requirement of the rule of law that a person should be able to predict whether a particular act constitutes a crime at the time he commits the act. The rule of law requires that laws provide in advance what can and cannot be done: Lord Bingham, The Rule of Law (2010). Condemning people for conduct that they could not have reasonably known was criminal is Kafkaesque and anathema to our notions of justice. After-the-fact condemnation violates the concept of liberty in s. 7 of the Canadian Charter of Rights and Freedoms and has no place in the Canadian legal system.
[15] The Cuerrier test gives rise to two uncertainties — what constitutes “significant risk” and what constitutes “serious bodily harm”? These terms are broad and different people can and do read them in different ways.
[16] About “significant risk”, some people say that virtually any risk of serious bodily harm is significant. Others argue that to be significant, the risk must rise to a higher level. These debates centre on statistical percentages. Is a 1% risk “significant”? Or should it be 10% or 51% or, indeed, .01%? How is a prosecutor to know or a judge decide? And if prosecutors, defence counsel and judges debate the point, how — one may ask — is the ordinary Canadian citizen to know? This uncertainty is compounded by the fact that a host of variables may affect the actual risk of infection.
[17] Debate has also surrounded the requirement that the risk be one of “serious bodily harm”. Some sexually transmitted diseases (“STDs”) involve little beyond treatable temporary discomfort. Yet even that discomfort, while it persists, may be serious from the perspective of the victim. Other STDs, like HIV, are extremely serious, involving permanent and life-altering symptoms, and in some cases death. Between these two extremes lie many other STDs, some more debilitating than others. Which are sufficiently serious to attract the sanction of the criminal law? Cuerrier offers no clear answer.
[18] The uncertainty inherent in the concepts of significant risk and serious bodily harm is compounded by the fact that they are interrelated. The more serious the nature of the harm, the lower the probability of transmission need be to amount to a significant risk of serious bodily harm, it is argued. So it is not simply a matter of percentage of risk and seriousness of the potential disease. It is a matter of the two as they relate to each other.
[19] What emerges is a complex calculus that makes it impossible, in many cases, to predict in advance whether a particular act is criminal under s. 265(3)(c) or not. The second major criticism of Cuerrier relates to the scope of the conduct it catches. The danger of an overbroad interpretation is the criminalization of conduct that does not present the level of moral culpability and potential harm to others appropriate to the ultimate sanction of the criminal law. A criminal conviction and imprisonment, with the attendant stigma that attaches, is the most serious sanction the law can impose on a person, and is generally reserved for conduct that is highly culpable — conduct that is viewed as harmful to society, reprehensible and unacceptable. It requires both a culpable act — actus reus — and a guilty mind — mens rea — the parameters of which should be clearly delineated by the law.
(2) Guides to Interpretation
[20] As for all issues of statutory interpretation, the basic question is what Parliament intended. That intention is discovered by looking at the words of the provision, informed by its history, context and purpose.
[21] The words of s. 265(3)(c) do not on their face reveal much about how Parliament intended “fraud” to be interpreted. The concept was taken by Parliament from the common law.
[22] The interpretation of “fraud” vitiating consent to sexual relations is informed by four considerations: (a) the purposes of the criminal law; (b) the common law and statutory history of the concept; (c) Charter values, particularly equality, autonomy, liberty, privacy and human dignity; and (d) the experience of other common law jurisdictions. I will consider each in turn.
(a) The Purposes of the Criminal Law
[23] The interpretation of fraud vitiating consent to sexual relations should further the purposes of the criminal law, notably identifying, deterring and punishing criminal conduct, defined by a wrongful act and guilty mind. Morality infuses the criminal law. But the law does not seek to criminalize all immorality. The principal objective of the criminal law is the public identification of wrongdoing qua wrongdoing which violates public order and is so blameworthy that it deserves penal sanction: Proprietary Articles Trade Association v. Attorney-General for Canada, [1931] A.C. 310 (P.C.); Reference re Validity of Section 5(a) of the Dairy Industry Act, [1949] S.C.R. 1, aff’d [1951] A.C. 179 (P.C.); Lord’s Day Alliance of Canada v. Attorney General of British Columbia, [1959] S.C.R. 497; The Queen v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Boggs v. The Queen, [1981] 1 S.C.R. 49; Skoke-Graham v. The Queen, [1985] 1 S.C.R. 106.
[24] The law draws a sharp distinction between civil wrongdoing and criminal wrongdoing. Criminal conduct requires both a wrongful act and a guilty mind. It requires “a significant fault element”: R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 32. As Charron J. stated for the majority of this Court in R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 34:
If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy. Such an approach risks violating the principle of fundamental justice that the morally innocent not be deprived of liberty.
The potential consequences of a conviction for aggravated sexual assault — up to life imprisonment — underline the importance of insisting on moral blameworthiness in the interpretation of s. 265(3) (c) of the Criminal Code .
(b) The Common Law and Statutory History of Fraud Vitiating Consent to Sexual Relations
[25] The common law history of fraud vitiating consent to sexual relations reveals three periods. The early cases support the view that failure to disclose to a partner the fact that one has a serious sexually transmitted disease could constitute fraud vitiating consent to sexual relations, resulting in convictions for rape or assault. This was reversed in The Queen v. Clarence (1888), 22 Q.B.D. 23 (Cr. Cas. Res.), which held that fraud was confined to deception as to the sexual nature of the act or as to the identity of the male sexual partner. In the post-Charter era, a return to a broader view of fraud vitiating consent is appropriate.
[26] The first recorded cases to look at the problem before us took a generous approach to consent to sexual intercourse — one that accepted that sexual partners (always women in those days) were entitled to refuse sexual intercourse and should not be tricked into it by deceit. The courts adopted a flexible approach to “fraud” vitiating consent to sexual relations. Without attempting to define the term, they showed themselves willing to extend the term to fundamental aspects of sexual intercourse.
[27] For example, in R. v. Flattery (1877), 13 Cox C.C. 388 (C.C.A.), a conviction of rape was upheld for a man operating a booth at a fair who had obtained sex from a girl of 19 on the pretext of medical treatment. It was held that the victim’s consent to physical contact with the accused was vitiated by his fraud, because she had only consented to a surgical operation, and not to a sexual act.
[28] Similarly, early common law cases accepted that impersonation of the spouse — falsely pretending to be the victim’s husband — could constitute fraud vitiating consent. In R. v. Dee (1884), 15 Cox C.C. 579 (Cr. Cas. Res. Ir.), O’Brien J. left no doubt on this issue:
That brings us back to the question which in law is the crime of rape. The crime is the invasion of a woman’s person without her consent, and I see no real difference between the want of consent and the act being against her will, which is the language of the indictment, though the distinction is taken by Lord Campbell, or between the negation of consent and positive dissent. Whether the act of consent be the result of overpowering force, or of fear, or of incapacity, or of natural condition, or of deception, it is still want of consent, and the consent must be, not consent to the act, but to the act of the particular person — not in the abstract, but in the concrete . . . . [p. 598]
[29] In R. v. Bennett (1866), 4 F. & F. 1105, 176 E.R. 925 (West. Cir.), similar reasoning was applied to hold that concealment of venereal disease amounted to fraud vitiating consent:
An assault is within the rule that fraud vitiates consent, and therefore, if the prisoner, knowing that he had a foul disease, induced his niece to sleep with him, intending to possess her, and infected her, she being ignorant of his condition, any consent, which she may have given, would be vitiated, and the prisoner would be guilty of an indecent assault. [p. 925]
[30] Again in R. v. Sinclair (1867), 13 Cox C.C. 28, the Central Criminal Court found fraud vitiating consent for non-disclosure of gonorrhœa, stating that if the complainant “would not have consented if she had known the fact, then her consent is vitiated by the deceit practised upon her, and the prisoner would be guilty of an assault” (p. 29).
[31] These cases evinced a generous approach to the issue of consent and when deceit might vitiate it, an approach that respected the right of the women involved to choose whether to have intercourse or not. However, this jurisprudence was shortly to be set aside, in a series of cases which culminated in Clarence. To read these cases is to enter a world foreign to modern sensitivities — the world of Victorian morality.
[32] The case that announced the change was Hegarty v. Shine (1878), 14 Cox C.C. 124 (H.C.J. Ir. (Q.B.D.)), a civil case involving an action for assault. Mr. Shine, the master of the house, had sexual relations with his domestic servant over a period of two years. She became pregnant and had a child. Both she and the child were infected with syphilis. The court dismissed the action against Mr. Shine on the basis of ex turpi causa non oritur actio — the plaintiff was the victim of her own immoral act, which the law could not condone. On the matter of fraud, the majority stated that the doctrine of fraud was confined to mistake as to whether the act was sexual or not: “In the case before us the defendant actively consented to the very thing, that is to say, sexual intercourse, with full knowledge and experience of the nature of the act” (p. 130). The appeal court ((1878), 14 Cox C.C. 145) confirmed that only deceit as to the nature of the act could vitiate consent. The court emphasized the pitiable condition of the victim, but concluded the law could not assist her.
[33] The point of no return for the earlier, more open view of fraud was reached in Clarence. That case confirmed that fraud could vitiate consent to sexual relations only if the complainant was deceived as to the sexual nature of the act or as to the identity of the man. The facts were simple. The couple were married. The husband did not tell his wife he had gonorrhœa and infected her. The husband was charged with assault and unlawful infliction of bodily harm.
[34] The fact that 13 judges sat suggests the case was viewed as important. The court divided nine to four, and the husband was acquitted. The majority held that fraud in the context of sexual relations had been interpreted too broadly by the earlier cases, and that it was necessary to limit its application to situations where the complainant was deceived as to the sexual nature of the act or as to the identity of the man. This produced a rule that was to prevail for almost 100 years that fraud could not vitiate consent to sexual intercourse unless it went to the “sexual nature of the act” or to the identity of the sexual partner.
[35] The opinion of Stephen J. encapsulates the view of the majority in Clarence. Stephen J. found that the offence of unlawful infliction of bodily harm could not apply to the case. While the act posed by the husband was indeed unlawful — infecting one’s wife was forbidden by the law relating to marriage since it constituted cruelty and could be evidence of adultery —, it could not be said that it constituted infliction of bodily harm. Indeed, the words “infliction of bodily harm” were construed as requiring a physical assault. Stephen J. found that infecting a person with a disease did not constitute such an assault.
[36] Stephen J. went on to consider the question of obtaining sexual relations by fraud. He expressed the view that the only fraud capable of vitiating consent to sexual relations was fraud as to the nature of the act of intercourse, or as to the identity of the sexual partner. If the victim knew the act was sexual, and was not deceived as to the identity of her partner, she could not complain that she had been deceived and her “consent” fraudulently obtained. Stephen J. commented briefly that neither Bennett nor Sinclair could be relied upon as precedent.
[37] The reasons of Pollock B., also in the majority, added that sexual acts done by a husband to his wife cannot be unlawful (pp. 63-64). The husband possessed conjugal rights over his wife to which she had consented by marrying him. Once married, the wife had no right to refuse her husband’s demands. Since sexual acts between spouses were lawful, Pollock B. reasoned, all such acts done by a husband — including those characterized by cruelty — must be lawful.
[38] The Clarence test was accepted throughout the common law world and prevailed until recent times. The strictness with which it was applied is illustrated by a 1957 decision of the Australian High Court, Papadimitropoulos v. The Queen (1957), 98 C.L.R. 249. The accused had induced the complainant to have sexual intercourse by duping her into believing that they were legally married. He was acquitted of the charge of rape. The court summed up the law as follows:
To say that in having intercourse with him she supposed that she was concerned in a perfectly moral act is not to say that the intercourse was without her consent. To return to the central point; rape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape. [Emphasis added; p. 261.]
[39] The views of the majority in Clarence were reflected in the first Canadian Criminal Code in 1892 (S.C. 1892, c. 29). Parliament defined fraud for purposes of rape and indecent assault narrowly, by restricting it to “false and fraudulent representations as to the nature and quality of the act”: ss. 259(b) and 266. The Code thus incorporated the concerns of the majority in Clarence. The deceitful act was limited to “false and fraudulent representations” by opposition to simple concealment, and the subject of the fraud was limited to the “nature and quality of the act”. As a consequence, Canadian courts accepted Clarence as settled law and continued to hold that only active fraud as to the nature of the act, i.e. fraud as to its sexual character, or as to the identity of one’s sexual partner constituted fraud vitiating consent to sexual intercourse: see, e.g., R. v. Harms (1943), 81 C.C.C. 4 (Sask. C.A.); Bolduc v. The Queen, [1967] S.C.R. 677.
[40] In 1983, Parliament amended the Criminal Code to create the present s. 265(3)(c): S.C. 1980-81-82-83, c. 125, s. 19. This amendment was part of a major overhaul of the law of sexual offences which aimed, inter alia, at protecting the integrity of the person and eliminating sexual discrimination in the criminal law. The new provision referred simply to “fraud”, dropping the qualifying phrases “false and fraudulent representations” and “nature and quality of the act”. Arguably, this change evidenced Parliament’s intent that “fraud” should be read more broadly than it had been in the past. However, courts continued to apply a restrictive interpretation to the term: see R. v. Petrozzi (1987), 35 C.C.C. (3d) 528 (B.C.C.A.); R. v. Lee (1991), 3 O.R. (3d) 726 (Gen. Div.); R. v. Ssenyonga (1993), 81 C.C.C. (3d) 257 (Ont. Ct. (Gen. Div.)).
[41] Occasionally, a more generous approach surfaced as to when fraud could vitiate consent to sexual relations. For instance, American caselaw was more inclined to convict the accused of assault or rape on facts similar to those in Clarence: State v. Marcks, 41 S.W. 973 (Miss. 1897), at p. 973, and 43 S.W. 1095 (1898), at pp. 1097-98; State v. Lankford, 102 A. 63 (Del. Ct. Gen. Sess. 1917), at p. 64; United States v. Johnson, 27 M.J. 798 (A.F.C.M.R. 1988), at p. 804; United States v. Dumford, 28 M.J. 836 (A.F.C.M.R. 1989), at p. 839. And in Canada, in R. v. Maurantonio, [1968] 1 O.R. 145 (C.A.), Hartt J. (ad hoc) held that “the words ‘nature and quality of the act’ . . . should not be so narrowly construed as to include only the physical action but rather must be interpreted to encompass those concomitant circumstances which give meaning to the particular physical activity in question” (p. 153). But these were minority voices.
[42] There are not many cases on the books, to be sure. One understands why when one considers the practical implications of the Clarence test. The cases where a woman consents to sex but thinks it is not sex or that it is sex with a different man are necessarily rare. Submitting to a medical examination only to discover it is a sexual encounter might be such a case; the complainant does not consent to the sexual act but to a medical procedure. Under Clarence and its progeny, if the woman consented to the sexual act with the given man, no matter what the deceit, the man could not be convicted for his act. It is not surprising that the legal lexicon contains few cases dealing with fraud vitiating consent. The stark fact was that in all but rare cases fraud could not vitiate consent.
[43] Canadian common law on fraud vitiating consent to sexual relations has now entered a third, post-Clarence era. Charter values of equality, autonomy, liberty, privacy and human dignity require full recognition of the right to consent or to withhold consent to sexual relations. Fraud under s. 265(3)(c) must be interpreted with these values in mind. The Clarence line of jurisprudence, which confined fraud to the question of whether the complainant knew the act was sexual or not, is no longer appropriate in the Canadian context. To hold that a complainant consents to the risk of an undisclosed serious disease because he or she knew the act was sexual affronts contemporary sensibilities and contemporary constitutional values.
(c) Charter Values
[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