R.+c.+Cuerrier


 * [**I didn't summarize Cory's reasons. They are 23 pages long. Within McLachin's reasons, there is a good summary of what Cory J. argues.**]

Facts:** - Cuerrier found out he was HIV positive in 1992. The nurses told him to practice safe sex and to inform his partners of his HIV status. - He subsequently had unprotected sex with two women. To one, he said he was HIV negative. To the other, he simply didn't disclose. - The Crown argues that the lack of disclosure constitutes fraud, vitiating the women's consent to the sex. The Crown asks the court to expand the law such that lying about HIV-status vitiates consent such as to make consensual sex into aggravated assault ("voies de fait graves"), as per art. 268 of the Crim Code.

//(//a//) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;// ... //(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.// //(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of ...// //(//c//) fraud; or//
 * Legislation:**//
 * 265.** (1) A person commits an assault when//

(1) Does art. 265(3)(c) intend to criminalize lying sexual behaviour? (2) If no, can courts criminalize lying sexual behaviour?
 * Issues:**

Answer to (1): - McLachlin says no. The legislator switched to the general word "fraud" in order to blend many types of assault into the same provision. If the legislator intended to criminalize lying about HIV status, the legislator would have been creating a new crime, and would have had to do so in __clear terms__. The court cannot interpret an article so as to find a new crime. Only the legislator can find new crimes. When there is ambiguity, such as here, the law should be interpreted in favour of the accused. A principle of statutory interpretation says that modification of the wording of a law by the legislator does not necessarily mean the law has changed. - art. 265(3)(c) did not mean to push aside the common law which only includes two ways to fraud through error: error as to the nature of the act, or as to the identity of the person.
 * Reasoning** **(Minority - McLachlin)**
 * -** Historically, consent to aggravated assault was vitiated by error in only two cases: error as to the nature of the act, or error as to the identity of the partner. The Criminal Code, art. 265(3)(c) specified only these two possible cases for vitiating consent. It did not included error as to the possibility of contracting an STD. In 1983, art. 265(3)(c) was broadened to include just "fraud" - did the legislator intend to include HIV in this?

Answer to (2): - The court will only modify the common law when there has been a progressive evolution of the law and the consequences are circumscribed and foreseeable. //**(A - 1) McLachlin takes issue with Cory's definition of fraud:**// - Cory then limits this to privation that causes a serious risk of bodily harm. But what harm is serious? Does psychological harm count? This guideline is too unclear - people need to know what is legal and what isn't in society. - Cory criminalizes not divulging a serious risk of harm. But the only case that should be criminalized is if the women didn't know of the HIV-status and, __had they known, would not have had sex__. The women could have __assumed the risk,__ and asked to have sex regardless of HIV status. Cory would remove from Cuerrier the defense that the women consented to the risk. Fraud vitiates consent __only if it incites to consent__. Non-divulgation alone cannot be sufficient to vitiate consent. This would raise problems of //mens rea// that might violate the Charter.
 * -** Cory would use the definition of __**commercial fraud**__ in 265(3)(c): __**deception leading to privation**__. There is deception if there is omission to divulge. There is privation if there is a risk of harm. McLachlin's response: getting pregnant could be a risk of harm. So then not disclosing the inefficiencies of certain forms of birth control could be fraud. Lies about the future possibility of marriage could lead to moral harm. Deception has from time immemorial accompanied sexual relations. We can't criminalize this wide range of deceptions.

//**(A - 2) McLachlin takes issue with LHD's definition of fraud:**// - LHD would define fraud for the purposes of 265(3)(c) as __**all deception that incites a person to consent to a physical act**__. - Now a handshake, with implicit consent, could become a crime if you could prove one person acted deceitfully to get the other to consent. Could a false moustache count as deceit? LHD's definition is too vague - flattery could count as a deception for some and not others. - Criminalizing HIV transmission would affect so many people - it would overwhelm police forces. It is better to leave such a decision to the legislator to weigh. - The key to HIV prevention is more testing, not criminalization. - It is marganilised groups that are the most affected by HIV (drug users, homosexuals, prisoners, prostitutes, etc) and they will feel the brunt of criminalization the strongest. - An obligation to divulge HIV status would make HIV-positive people almost clandestine.

//**(B) McLachlin's change: a more minor change, but still progressive**// - The common law should be expanded to include as types of fraud that vitiate consent: (1) error as to the sexual nature of the act (ex: a person who thinks sex is a medical procedure required...); (2) error as to the nature of the person; (3) error as to venereal disease. - The law used to reflect this but //Clarence// rejected (3). McLachlin overturns //Clarence// to add (3) to the list. - Is this opening the door for a man promising his wife a fur coat for sex, her consenting on that belief, and him not giving the coat to her? - No, this is a very restrained broadening of the rule. Adding (3) only penalizes people who don't disclose a venereal disease when they knew or should have known about it. And this lie must incite the other person to consent to sex. - Consenting to unprotected sex not knowing of a venereal disease means consenting to aggravated assault. The plaintiff didn't consent to having infectious fluids brought into his/her body that will kill him/her. It is different from lying about a fur coat or marriage since those don't concern lying about __the act itself__ and don't change the act itself fundamentally. This case is much more serious than the fur coat or marriage one, and deserves penal sanctions. - Protected sex is not touched since there must be a serious risk of harm. - It remains to be seen if the law will expand to include other types of fraud (such as risk of pregnancy).

What are the effects of expanding the law as McLachlin did? - Might push people not to test themselves for HIV so as not to know their status. - However, it may also encourage people to divulge to avoid criminal sanctions. - Art. 221 already applies to people who don't divulge their HIV status to their partners, and that hasn't had the effect of decreasing HIV testing.

McLachlin's reasons are sufficient to read as they explain both Cory and LHD's reasons. Megret said as much in class. I include the others reasons below, but feel free to stop reading now.

Disagrees with McLachlin that the legislator did not want to change the meaning of "fraud" in art. 265(3)(c). Thinks legislator did want to expand the meaning from the strict two cases (mistake as to identity and nature of the act) allowed in common law, but wanted to expand it in a different sense from how Cory does. - The changes in legislation reflect an evolution in society's view of sexual abuse. - By changing the provision from "fausses et frauduleuses représentations sur la nature et le caractère de l’acte" to just "fraude" - the legislator wanted to give a wider interpretation to fraud. - Another change in the legislation: instead of fraudulent consent making the act an infraction despite consent, now there __is no consent if there is fraud__. - The question is no longer was there fraud as to nature or identity but rather: was there fraud that led the victim to submit to the act? - McLachlin minimizes these legislative changes, arguing that there is no proof of legislative debate on the subject. She says going beyond the common law is too big a role for the courts. - When interpreting art 265(3)(c), it is important to remember that it applies to all forms of assaut, not just sexual assault. - Cory would have it that there is only fraud when the person is exposed to a risk serious bodily harm. LHD says this applies only to sexual assault. LHD doesn't want the legislator to regress to a regime where sexual assault is treated differently from all other types of assault. - The regime of assault protects people from touching, and allows them to choose the conditions under which they are touched. - LHD would define fraud as: **there is fraud if the dishonest act caused the person to consent to a physical act, regardless of whether there was risk or danger**. The Crown would have to show that the dishonesty caused the victim to consent and that without the dishonesty the victim would not have consented. - This maximizes the fact that an individual should be able __to choose under what conditions she undergoes physical contact.__ - Most of the victims of sexual abuse are women. Cory's requirement that there must be a risk of serious physical harm might play off of old stereotypes: such that rape isn't assault when the woman didn't fight or resist, or show violence. The essence here isn't physical harm, but violation of dignity. Why should fraud have a wider definition commercially than in the context of sexual assault, one of the worst violations of human dignity? - Because the Crown needs to prove the causal link between the dishonesty and the consent, that would exclude situations such as a man lying about his job to sleep with a woman. - LHD rebuts McLachlin's idea that LHD's definition encompasses //way too many things//, such as a man wearing a fake moustache. LHD says //de minimis non curat lex// - the law does not care about insignificant things. The Crown would not take on cases that weren't serious.
 * Reasoning** **(Minority - LHD)**


 * Reasoning (Majority - Cory)**