On March 7, 2014, the Supreme Court released its decision in R. v. Hutchinson, 2014 SCC 19. Mr. Hutchinson had engaged in consensual sexual activity with his partner, who insisted that he use a condom in order to prevent conception. Unknown to her, Mr. Hutchinson poked holes in his condom and his partner became pregnant. Mr. Hutchinson was convicted of sexual assault. The Supreme Court upheld Mr. Hutchinson’s conviction.

The main issue before the Supreme Court was 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) of the Criminal Code, or whether the condom sabotage constituted fraud under s. 265(3)(c), with the result that no consent was obtained. In upholding Mr. Hutchinson’s conviction, the majority of the Court held that 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. In this case, the “sexual activity in question” was sexual intercourse and the complainant voluntarily agreed to it.

On the question of whether Mr. Hutchinson’s partner’s agreement to the “sexual activity in question” was vitiated by fraud, the Court found that the dishonesty was evident and admitted. The only remaining issue was thus whether there was a sufficient deprivation to establish fraud. In this case, there was – 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). Finally, the Court held that 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 thus no consent by reason of fraud, pursuant to s. 265(3)(c).

Jonathan Shime and Wayne Cunningham of Cooper, Sandler, Shime & Bergman LLP, along with Ryan Peck, acted as counsel for the interveners, the Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario.

The full decision of the Supreme Court can be found here.