SUPREME COURT OF NOVA SCOTIA Citation: R. v. Hutchinson, 2009 NSSC 51 Date: 20090122 Docket: CR 298348 Registry: Halifax Between: Her Majesty the Queen v. Craig Jaret Hutchinson LIBRARY HEADING Judge: The Honourable Justice Gerald R P Moir Heard: 19, 21, and 22 January 2009 at Halifax Written Decision: Oral decision transcribed and signed on 23 February 2009 Subject: Sexual assault; Proof of consent; Fraud vitiating consent Summary: The evidence showed that a couple regularly had sex, but the complainant always insisted on condoms. The defendant deceitfully poked holes in all her condoms. On a motion for a directed verdict, the defendant argued that a trier of fact could not find that the threshold for vitiation of consent, exposure to a significant risk of serious bodily harm, had been met. Issue: Whether the evidence was sufficient that a trier of fact could convict? Result: Motion allowed and acquittal entered. The evidence of the experts makes it clear that pregnancy and abortion are usually safe, and risk of serious bodily harm is remote rather than "significant". THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA





Citation: R. v. Hutchinson, 2009 NSSC 51 Date: 20090122 Docket: CR 298348 Registry: Halifax Between: Her Majesty the Queen v. Craig Jaret Hutchinson __________________________________________________________________ D E C I S I O N __________________________________________________________________ Judge: The Honourable Justice Gerald R P Moir





Heard: 19, 21, and 22 January 2009 at Halifax Written Decision: Oral decision transcribed and signed on 23 February 2009 Counsel: Ms. Jennifer MacLellan and Ms. Lazina Khan, Law Student, for the Crown Mr. Patrick MacEwen, for the defence





Moir, J (Orally): [1] Introduction. Mr. Craig Hutchinson is charged with aggravated sexual assault because he deceived his girlfriend by secretly poking holes in the condoms they used when having sex. The Crown presented its evidence and, on behalf of Mr. Hutchinson, Mr. MacEwen moves for a directed verdict. [2] I must acquit on the offence charged, and included offences of sexual assault causing bodily harm, simple sexual assault, and assault, if the Crown has failed to present evidence on which a properly instructed jury, acting reasonably and accepting the evidence, could find guilt on the offence charged, or on an included offence. Otherwise, I must dismiss the motion. [3] Evidence going to sexual assault. The complainant was in her early thirties when she formed an intimate relationship with a co-worker, Mr. Hutchinson. The relationship lasted for about nine months, until she told him it was over. She did so on November 1, 2006. [4] The complainant gave evidence which, if believed, makes it very clear that she wanted to avoid pregnancy, that condoms would be used except during her period, and that Mr. Hutchinson understood her requirements.





[5] The couple had sex three or four times a week. Condoms were always used except during periods when the complainant understood pregnancy was impossible. One of the experts advises me that it is possible but it’s rare. A condom broke on only one occasion, and the complainant worried until her next period occurred at the expected time, August 5, 2006. Condoms were kept at his home, and at hers. In her home, they were kept in a box, in the drawer of her bedside table with other private things. [6] In July or August, the complainant started to consider ending the relationship. She discussed this, off and on, with Mr. Hutchinson, who very much wanted the relationship to continue. His behaviour started to change. He did things that seemed odd. [7] After months of apparently enjoying it, he refused to let her put a condom on him. One day he became upset when discussing a possible breakup. Oddly, he went into her bedroom, closed the door, and sat near the bedside table. [8] In early September, Mr. Hutchinson insisted on a pregnancy test, although condoms had been used consistently. The complainant took a test and it was negative. He insisted on another. A September 5, 2006 test was positive apparently. [9] After this, and before the complainant decided to have an abortion, the relationship declined. It was ended on November 1, 2006. [10] On November 5th, Mr. Hutchinson sent his ex-girlfriend a series of text messages. They included · To protect you I need to tell you something I did two months ago. · Throw your condoms away. I poked holes in all. · I wanted a baby with you so bad I sabotaged the condoms. [11] After receiving these messages, the complainant took out her box of condoms. Every one has a hole in it. [12] The complainant’s family physician estimated the pregnancy to have dated from September 4, 2006. The doctor who performed the abortion requests that her name not be used publicly. She studied the fetus’ remains after the abortion and determined that the fetus was nine weeks old. That puts conception at September 14, 2006. [13] Use of sabotaged condoms. The Crown’s primary position is that the complainant consented to sex, but her consent was vitiated by fraud through Mr. Hutchinson’s deceitful use of the sabotaged condoms. The first issue raised in defence is that the Crown has not produced any direct evidence that Mr. Hutchinson ever used one of the defective condoms, and the circumstantial evidence is too weak to support a conviction. [14] In my assessment, the circumstantial evidence, assuming it is accepted, is strong enough that a properly instructed trier of fact, acting reasonably, could conclude that the Crown has proved, beyond a reasonable doubt, that Mr. Hutchinson got the complainant pregnant by wearing a sabotaged condom. [15] There is evidence, to be accepted or rejected by the trier of fact, tending to prove all of the following: · Mr. Hutchinson made a plan to get the complainant pregnant by using punctured condoms. · He poked holes in all of the condoms in the box from which he took condoms during sex at her home. · Sex continued regularly after he sabotaged all the condoms. · The complainant got pregnant. [16] A jury, or a judge trying the case alone, would have to consider that the pregnancy may have been caused by sex during a period or by a failure in a condom, rather than by the means devised by Mr. Hutchinson. If so, the trier would have to take that into account in finding whether Mr. Hutchinson used the sabotaged condoms at all. But that and other assessments would be within the province of the trier, not the judge who hears a motion for a directed verdict. [17] Evidence of harm to complainant. Vitiation of consent requires that the Crown prove, beyond a reasonable doubt, that Mr. Hutchinson inflicted a "significant risk of serious harm" on the complainant by getting her pregnant or by exposing her to pregnancy. In a similar vein, the charge of aggravated sexual assault requires proof that the unprotected sex "wounds, maims, disfigures or endangers the life of the complainant". The focus here must be on endangering life. Thirdly, the included offence of assault causing bodily harm requires proof the complainant suffered a hurt or injury "that is more than merely transient or trifling in nature". [18] So, I begin by looking at the risks and harms that came to the complainant assuming her testimony and that of her doctors is believed. [19] The complainant went through a period of not knowing whether to have an abortion. After the deceit became known, she leaned towards abortion but needed professional counselling to make up her mind. Development occurred regularly, without physical side effects. The abortion went well, but the complainant did contract an infection in the lining of her uterus that led to bleeding and pain. It was cured in three weeks by antibiotics and, in the meantime, the pain was alleviated by Ibuprofen. [20] The complainant’s family physician gave evidence about complications that may result from pregnancy. In the first trimester, there may be excessive bleeding, a miscarriage and the attendant risks of transfusion and D. and C. surgery, allergic reactions, an ectopic pregnancy, excessive blood clotting, hypertension that may lead to swelling and seizures, and other complications. These complications can include risk of death of the mother or the child. [21] In the second trimester, there is also a risk of bleeding due to a low placenta, which poses a risk to the life of the child. [22] Delivery poses risks in the third trimester. These include the use of forceps which could lacerate the mother before low forceps were recently introduced, the risk of a cesarean section including risks of low blood pressure, hypertension, and side effects of the increased medication required for a cesarean section. Death of the mother in childbirth can still happen, but it is "very rare". [23] The doctor qualified all of her testimony about complications of pregnancy by saying that most pregnancies go uncomplicated. In cross-examination she said death of the mother was "rare" and did not dispute "very rare". The need for a blood transfusion is also "rare". In cross-examination, she also said that the complainant showed no signs of any complications in the eight or nine weeks when she was pregnant. [24] The doctor who performed the abortion described possible complications. Helpfully, she gave us a copy of the Capital Health standard consent form, as developed for abortions, which refers to the following complications: excessive bleeding, perforation of the uterus, cervical laceration, retained tissue, infection, continued pregnancy. The form warns "Very rarely, these complications could require further surgery and/or lead to infertility". The doctor said, emphatically, that abortion is "a safe procedure". [25] The family doctor pointed out that infections of the kind the complainant contracted can lead to scarring or infertility if they are left untreated. [26] Vitiation of consent. As I said, the Crown’s primary position is that the complainant consented to sexual intercourse, but her consent was vitiated by Mr. Hutchinson’s fraud.





[27] Mr. MacEwen takes no issue with leaving fraud to the trier of fact, but he says that the trier who believes the evidence offered, who is properly instructed, and who acts reasonably could not conclude that another essential element of vitiation has been proven. That element is "risk of deprivation", and more significantly that the fraud exposed the complainant to "significant risk of serious bodily harm". [28] At common law, fraud vitiating consent to sexual intercourse was confined to representations about the nature of the act or the identity of the partner. Until 1983, the Criminal Code provided that consent to sexual intercourse was vitiated where the consent was obtained "by false and fraudulent representations as to the nature and quality of the act". [29] In 1983, the Code was amended to recognize sexual offences as assaults. Subsection 265(3) contains provisions about consent, which were applicable to all kinds of assaults, including sexual assaults. It included "no consent is obtained where the complainant submits ... by reason of ... fraud". The reference to fraud contains no modifiers, or qualifiers. [30] In R. v. Cuerrier 1998 CanLII 796 (SCC), [1998] SCJ 64, the question was whether the old restrictions on the kinds of fraud that vitiate consent to sexual activity were retained in s. 265(3)(c). Cuerrier was the first of the modern HIV cases from the Supreme Court of Canada. [31] The court split five to two. Justice Gonthier and the present Chief Justice were of the view that the common law restrictions remained applicable. Justice Cory wrote for four members of the court, and Justice L’Heureaux-Dubé wrote for herself. [32] Mr. Cuerrier, despite warnings from public health officials, had unprotected sexual intercourse with two complainants without disclosing to either of them that he had HIV. Although they were exposed to a serious risk of HIV, and full-blown AIDS, neither complainant contracted the feared disease. [33] A core factual finding is expressed by the majority opinion, at para. 96: "Both complainants consented to engage in unprotected sexual intercourse with the respondent." They had no illusions about the sexual nature of the act to which they were consenting. [34] At para. 105, the majority said The repeal of statutory language imposing this requirement and its replacement by a reference simply to fraud indicates that Parliament’s intention was to provide a more flexible concept of fraud in assault and sexual assault cases. The court referred to "a more flexible concept of fraud". And, when it made that reference, it did not take Parliament’s use of the word "fraud" literally. Not just any fraud would vitiate consent. It could include "non disclosure of important facts", but there also has to be a "deprivation or risk of deprivation".





[35] In sexual cases, it must be proved "that the dishonest act ... had the effect of exposing the person consenting to a significant risk of serious bodily harm": para. 128. This limit seems to be an attempt to confine the expanded meaning of fraud, in the context of sexual conduct, to more serious cases. The gravity of sexual assault offences "makes it essential that the conduct merit the consequences of the conviction": para. 132. In Cuerrier the risk was high and the bodily harm included death. [36] The deceit element of fraud that vitiates consent is not in issue on the present motion. The issue is whether the deceit exposed the complainant to "a significant risk of serious bodily harm". In my assessment, there is no evidence upon which a trier of fact could reach that conclusion. [37] There is no need to be definitive about what "significant" means in the limit. It does not mean remote, and the evidence presented by the Crown makes it clear that risks of serious bodily harm to which the complainant was exposed were remote. [38] The complainant was exposed to pregnancy. No one suggests that pregnancy is itself "serious bodily harm". That would be as offensive to women as the one-time exclusion from UIC on the basis that pregnancy was a "self-inflicted wound". Rather, the risks to be considered are the risks a woman endures during pregnancy and childbirth, or the risks of abortion if that is chosen. [39] The experts called by the Crown have used the words "rare" or "very rare" to describe the risks of serious complications of pregnancy and abortion. I take them to say that the serious complications are remote. [40] And, this accords with our common sense and expectations. We do not expect women to die from childbirth, or abortion, in Canada in the 21st century. We do not expect a healthy, young woman to encounter serious bodily injury as a result of pregnancy, or abortion.





[41] Finally, a treatable infection that is cured in three weeks cannot, in my opinion, be called "serious" in a discourse that treats exposure to HIV, and AIDS, as "serious". [42] Counsel provided me with a copy of Judge Derrick’s decision committing Mr. Hutchinson to trial, for its persuasive value. With great articulation and care, the learned judge reaches a conclusion opposite to mine when applying an identical test. We disagree on the subject of risk. Judge Derrick records, at para. 37 of her decision, a finding about the level of risk when she says: The fact that the incidence of serious problems in pregnancy, childbirth and abortion, are low does not alter the fact that a pregnant woman faces the possibility of risks to her health and even her life that a non-pregnant woman does not. I accept that, but, in my opinion, the Crown is required to demonstrate a level of risk that is higher than that passage describes. In my respectful view, a low risk, a remote risk, the risk indicated by the words "very rare" and "safe", does not meet the requirement of Cuerrier. [43] Consent to unprotected sex. I asked the parties for submissions on this point: Whether the Crown can be said to have proved lack of consent on the basis that the complainant consented only to protected sex?



