Indexed as: R. v. Hutchinson

I think this case and case law might be important  for the definition of consent. Click on the links to learn more about the case and some of the laws the lawyers referenced during the case or read excerpts below. I am not a lawyer so proceed with caution and consult a lawyer for more information.


Court Case

In this Court, McIntyre J., had “no difficulty” overturning the Court of Appeal’s decision, concluding instead that a sexual assault had been committed by the accused ([1987] 2 S.C.R. 293, at p. 303).

[100]                      To say that condom use is not part of the sexual activity in question under s. 273.1(1) but rather a collateral condition, is reminiscent of the artificially narrow approach to the word “sexual” taken by the Court of Appeal in Chase and rejected by this Court. We must similarly take care not to adopt an interpretation of “sexual activity in question” that unreasonably or arbitrarily excludes certain forms of touching from the meaning of s. 273.1(1).  By any definition, when someone uses a condom, it is part of the sexual activity.  It is therefore part of what is — or is not — consented to.  And if what is consented to is sexual activity with a condom, the condom is expected to be intact.  If it is not intact because of its deliberate sabotaging, the activity that has been agreed to has been unilaterally changed by the saboteur.

[101]                      What took place here was sexual intercourse with a sabotaged condom, a sexual activity to which the complainant did not consent.  The fact that she only learned of the deliberate sabotaging after the sexual activity took place, is of no relevance.  What is relevant is what sexual activity she agreed to engage in with Mr. Hutchinson and whether he stuck to the bargain.  He did not.  Since the complainant did not agree at any time to how she was touched, consent within the meaning of s. 273.1(1) did not exist.

[102]                      Nor can we see why requiring the consistent approach to consent in sexual assault set out inEwanchuk — and never abandoned by this Court — can now be said to lead to “over-criminalization”.  Sexual assault is a crime.  What s. 273.1(1) does is explain, clearly and simply, that the actus reus of sexual assault is made out when someone does not agree to the manner of the sexual touching, that is, when an individual engages in sexual touching in a way that is contrary to the complainant’s wishes, thereby violating his or her bodily integrity. This on its own, however, is half the story.  The mens rea for the offence of sexual assault captures those who knowingly touch the complainant in a way that he or she has not agreed to, thereby disregarding the complainant’s right to determine how he or she is sexually touched.  While the criminal law must remain sensitive to concerns about over-criminalization, those concerns should not be used to generally undermine the hard-fought legislative protection for someone’s right to determine how he or she is sexually touched.  It is also worth remembering the Chief Justice’s comments in J.A. — with the Court’s unanimous agreement on this point — where she observed that “even mild non-consensual touching of a sexual nature can have profound implications for the complainant” (paras. 63 and 121).

[103]                      The complainant in this case agreed to engage in sexual activity in a certain manner, that is, sexual intercourse with an intact condom.  Mr. Hutchinson deliberately sabotaged the condom without her knowledge or agreement.  It trivializes the seriousness of the violation of the complainant’s integrity that occurred to analogize a sabotaged condom, as our colleagues have done, to its brand or expiration date.  Because of the deliberate deceit of her partner, the sexual activity was not carried out in the manner that the complainant had agreed to.  Put simply, the complainant did not consent to how she was touched, and thus she did not voluntarily agree to the sexual activity in question under s. 273.1 of the Code.

[104]                      We would therefore dismiss the appeal.

                    Appeal dismissed.

                    Solicitors for the appellant:  Burke Thompson, Halifax.

                    Solicitor for the respondent:  Public Prosecution Service of Nova Scotia, Halifax.

                    Solicitors for the interveners:  Cooper, Sandler, Shime & Bergman, Toronto; HIV & AIDS Legal Clinic Ontario, Toronto.


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