A decision rendered March 7, 2014 from the Supreme Court of Canada unanimously upheld a sexual assault conviction of a Nova Scotia man, Craig Hutchinson.
The man attempted to trick his then-girlfriend into pregnancy by poking holes in the condoms they used during intercourse. In 2006, the accused poked holes in condoms using a pin, resulting in his girlfriend’s pregnancy and subsequent abortion. The woman was later treated with antibiotics having suffered a uterus infection.
Per R v Hutchinson, 2009 NSSC 51, the Nova Scotia Supreme Court originally found Hutchinson not guilty of aggravated sexual assault.
The Crown had to prove the “sexual activity in question” was not consented to, specifically unprotected intercourse, per Section 273.1(1) of the Criminal Code.
September 28, 2011, Hutchinson was found guilty by the Supreme Court of Nova Scotia and convicted of sexual assault. He was sentenced to 18 months on December 2, 2011 per R v Hutchinson, 2011 NSSC 462. Coughlan J of Halifax (para 25) writes:
Considering the case law and legislation, the circumstances of the offender and the offence, I sentence Mr. Hutchinson to incarceration for a period of eighteen months.
In a subsequent hearing at the Nova Scotia Court of Appeal the appellant appealed both the conviction and eighteen month sentence. In R v Hutchinson, 2013 NSCA 1, MacDonald, CJ, writing for the majority, concluded:
The judge was correct to conclude that the “sexual activity in question” [as envisaged in s. 273.1(1) of the Criminal Code] was unprotected sex which the complainant did not consent to. With all other elements of the offence made out, the appeal against conviction should therefore be dismissed.The sentence was not demonstrably unfit, nor did it reflect an error in principle. Therefore, the appeal against sentence should also be dismissed.
However, Farrar J provided a dissenting opinion which gave grounds for the appellant’s appeal to the SCC:
The trial judge erred in finding there was no consent under s.273.1(1) of the Criminal Code. The proper approach would have been to determine whether consent was vitiated under s. 265(3)(c) by fraud. The appeal should be allowed and a new trial ordered.
In a unanimous 7-0 ruling, the SCC concluded in R v Hutchinson, 2014 SCC 19 that Mr. Hutchinson’s actions of poking holes in condoms vitiated his girlfriend’s consent. The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario were interveners.
McLachlin, CJ & Cromwell, J (para 71) write:
We conclude that where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent under s. 265(3)(c).
Paragraph 70 of the judgment discusses a woman’s right not to become pregnant:
The concept of “harm” does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy. Depriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a “significant risk of serious bodily harm” within the meaning of Cuerrier, and therefore suffices to establish fraud vitiating consent under s. 265(3)(c).
Key Timelines and Jurisprudence
R v Hutchinson, 2009 NSSC 51
R v Hutchinson, 2011 NSSC 462
R v Hutchinson, 2013 NSCA 1
R v Hutchinson, 2014 SCC 19
R v Mabior, 2012 SCC 47,  2 SCR 584
R v Cuerrier,  2 SCR 371