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).
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).