Abstract: In four recent cases, the Supreme Court of Canada sought to protect gender equality, sexual autonomy and other Charter values by expanding the scope of s.265(3)(c) of the Criminal Code: sexual assault by “fraud”. Although the Court invokes “significant risk of serious bodily harm” to limit the scope of consent-vitiating deception (or nondisclosure), its
application of this standard has been justly criticized for inconsistency, and for diverging from the scientific consensus about transmission risk.This Article offers a principled way to distinguish criminal from noncriminal sex by deception. Rape-by-fraud should be defined in accordance with the core values protected by sexual assault law: moral retribution, harm, gender equality, and sexual autonomy. On all these counts, sex by deception is distinct from sex by coercion, and it is less serious. Voluntary-but-deceived sex is not sexual assault. Deceptions that lead to sex should be punished as rape only if they are coercive: that is, they led the victim to believe s/he had to have sex. We do not need a fraud provision to capture such deceptions: they are largely prohibited by other sexual assault provisions that prohibit sex by threats, fear, and abuse of trust, power or authority. Moreover, we do not need a fraud provision to capture the two deceptions that constituted rape at common law: fraud as to identity and fraud as to the “nature and quality of the act”. Both these situations involve no consent: agreement to nonsexual touching is not consent to sex, and agreement to sex with one person is not consent to sex with another.
The SCC is set to release Hutchinson this Friday, so here’s a brief note + some links. Hutchinson was committed for trial by Justice Derrick in the NSPC R. v. Hutchinson, 2008 NSPC 79 (CanLII) The case was heard in 2009 by the NSSC R. v. Hutchinson, 2009 NSSC 51 (CanLII). That decision was appealed and heard by the NSCA, R. v. Hutchinson, 2010 NSCA 3 (CanLII), which sent it back for a new trial. Unfortunately I cannot find the report of the second trial (email me please if you have it) but Osgoode graduating 3L Meredith Bacal has a great piece from 2012, here at theCourt.ca, which describes the decision of Justice Coughlan – from which another appeal resulted. This second appeal was heard in 2013 by the NSCA, R. v. Hutchinson, 2013 NSCA 1 (CanLII). The 2013 decision was appealed to the Supreme Court.
here is the SCC summary of the case:
Mr. Hutchinson was charged with aggravated sexual assault for poking holes in the condoms he used with his partner, knowing she did not want to get pregnant. At his first trial, he was acquitted on a directed verdict, but the Court of Appeal reversed that decision and ordered a new trial. At retrial, Mr. Hutchinson was convicted of sexual assault because the trial judge found that while the complainant may have consented to the sexual intercourse, she did not consent to unprotected sexual intercourse. Mr. Hutchinson appealed his conviction, arguing that the complainant freely and voluntarily consented to having sexual intercourse with him and that his deception over the condoms, however reprehensible, was not enough to vitiate that consent. The majority of the Court of Appeal dismissed the appeal. Farrar J.A. would have allowed the appeal and ordered a new trial on the basis that the trial judge erred in finding that there was no consent under s. 273.1(1) of the Criminal Code, and that the proper approach would have been to determine whether consent was vitiated by fraud under s. 265(3)(c). (source)
The Supreme Court of Canada heard the appeal in November of 2013 (webcast here) with the bench consisting of the Chief Justice and Justices Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, and Wagner.
…..and it’s coming out on Friday. The only intervener was Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario, although their Factum does not appear to be online either with the court or at either website (here, here).
|Other sources? R v Mabior and R v DC: SEX, LIES, AND HIV: MABIOR AND THE CONCEPT OF SEXUAL FRAUD Martha Shaffer (Summer, 2013) 63 Univ. of Toronto L.J. 466 (mentions Hutchinson FN 6, and canvasses the surrounding legal context)|
This is about more than just Pamela Wallin’s taxi expenses! Canada’s LEAF (Women’s Legal Education & Action Fund) requested intervention in the upcoming (November 13-15_) Senate Reference (see Maclean’s mag background information here) but they report that the compressed timelines due to the fast tracking of this reference led to LEAF needing to request late filing, a request which was denied by LeBel J. on 2013-06-14.
Here is a link to LEAF’s memorandum of argument in the intervention request, and here is a little snippet:
4. Inclusion and equality, including equality of women and men, are fundamental principles of our democracy.
5. Given these fundamental organizing principles, Canadian women have an expectation that electoral and appointment processes will include appropriate measures based on current knowledge and analysis to ensure equality of access and result. Such processes must promote the substantive equality of Charter rights-holders, recognizing the importance of reflecting the diversity of Canadian society and achieving overall gender balance in the composition of the Senate. Senate reform must avoid processes that will result in the underrepresentation of women and minority groups.
6. LEAF seeks to intervene in this reference in order to assert the necessity of taking the rights of women and minority groups into account in all constitutional processes and changes touching upon Canada’s democratic institutions given the important role they fulfill with respect to law and public policy.
This is from LEAF’s Open Letter to the First Ministers of Canada which demands that women be consulted on Senate Reform:
These two cases should be interesting.
Ryan (see NSCA decision: http://bit.ly/X9FYP4) involves an abused spouse who tried to hire a hitman to kill her abusive husband. The legal question revolves around whether the defence of duress is available to her. In O’Brien, (see 2012 MBCA 6 http://bit.ly/10wHRwG ) the jailed O’Brien was charged with uttering death threats. He made various threats to his girlfriend over the phone (from jail…) after she told him she was planning an abortion. She testified that she wasn’t worried about the threats, that he was always talking like that, and this gives rise to the interesting legal issue.
Looking forward to looking at the discussion of violence against women as context in these (I think…).
Also: Where is Whatcott? Both of the cases coming out this week were heard well into 2012. Whatcott (see SKCA decision here) in December 2011.
NS Finally came out today, as you probably know. The Supreme Court cases considered how law should deal with the claim of a niqab (don’t know what that is? check here) wearing woman who was to testify as a complainant in a sexual assault trial that wearing the niqab was a religious right – when the accused claimed the wearing of the veil contravened his fair trial rights.
Here is a little roundup.
First, the decision (my nutshell: N.S. Majority: Balancing. LeBel & Rothstein: Niqab is incompatible w fair trial. Abella dissents: No need to remove. )
Second, commentary. There’s not much deep commentary today, but there are quick thoughts and helpful summaries.
My colleage Faisal Bhabha, who appeared for one of the interveners who supported N.S., here in the Globe and Mail.
The court made it very clear that people are not required to park their religion at the door, so to speak,” said Mr. Bhabha…
Poli Sci Prof Emmett Macfarlane in Macleans here.
Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane…
So long as the decision to wear the niqab is made freely, it ought to be respected from a rights perspective. And in weighing so heavily the risks to a fair trial over not just the latitude given to religious freedom, but also the deleterious and societal effects of providing insufficient protection for them, the majority has handed trial courts a messy confluence of rules likely to do more harm than good.
Ruthann Robson of CUNY law putting Canadians to shame with her quick off the mark blog post here.
“From the perspective of US conlaw scholars, whether or not interested in comparative constitutional law, the Canada Supreme Court’s opinion in R. v. N.S. is an important one seeking to balance rights and addressing an issue that is percolating in the United States courts.”
There is much quick commentary available – especially on Twitter – all very canadian and clean.
— Vanessa MacDonnell (@vanessa_macd) December 20, 2012
From the Abella reasons:
 This has the effect of forcing a witness to choose between her religious beliefs and her ability to participate in the justice system: Natasha Bakht, “Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms”, in Ralph Grillo et al., eds., Legal Practice and Cultural Diversity (2009), 115, at p. 128. As a result, as the majority notes, complainants who sincerely believe that their religion requires them to wear the niqab in public, may choose not to bring charges for crimes they allege have been committed against them, or, more generally, may resist being a witness in someone else’s trial. It is worth pointing out as well that where the witness is the accused, she will be unable to give evidence in her own defence. To those affected, this is like hanging a sign over the courtroom door saying “Religious minorities not welcome”.
 The order requiring a witness to remove her niqab must also be understood in the context of a complainant alleging sexual assault. As this Court stated in R. v. Mills,  3 S.C.R. 668, “an assessment of the fairness of the trial process must be made ‘from the point of view of fairness in the eyes of the community and the complainant’ and not just the accused” (para. 72): see also R. v. O’Connor,  4 S.C.R. 411, per McLachlin J., at para. 193. Creating a judicial environment where victims are further inhibited by being asked to choose between their religious rights and their right to seek justice, undermines the public perception of fairness not only of the trial, but of the justice system itself.
those thoughts are also behind this tweet from @blberger
Second last word
— (usually) S Lawrence (@OsgoodeIFLS) December 20, 2012
— Galldin Robertson (@GalldinRoberts) December 20, 2012
Your links and thoughts welcome in the comments or on FB