Tag Archives: vitiation

Contraception & Consent: Hutchinson v. The Queen comes out this Friday

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)