Part II – HIV and Pregnancy: Revisiting the “significant risk of serious bodily harm” standard in R v Cuerrier through R v Hutchinson
Last week I walked the R v Hutchinson 2011 NSSC 361 decision through the context of sexual assault, informed consent and the use of contraception. For a briefing of the facts, judicial history and decision, please read here. This week, I will apply the case to the murky waters of aggravated assault and the out dated caselaw that is R v Cuerrier  2 SCR 371.
Briefly, Hutchison, the accused, had sexual intercourse with his girlfriend, N.C.. She consented to do so, provided the pair use condoms as a form of contraception. Hutchison secretly poked holes in the condoms, which subsequently impregnated N.C. N.C. then broke up with the accused and had an abortion. Hutchinson later confessed that he had sabotaged the condoms. In Cuerrier, the accused did not disclose that he was HIV positive when engaging in sexual intercourse with the complainant. The complainant did not contract an STI as a consequence of having sexual relations with the accused.
AIDS was first identified in the US in 1981. Three years later, HIV testing began. The Supreme Court of Canada (SCC) decided Cuerrier in 1998 – the same year the first HIV vaccine study was conducted. While there still remains no cure for HIV, there has been tremendous progress in treatment. It is no longer the death sentence it once was. In fact, individuals can now use antiretroviral therapy to lower viral loads, and thus, lower the risk of transmission.
Cory J. in in Cuerrier articulated the test for when consent is vitiated on account of fraud. If the conditions of the test are met, the defendant would be charged with aggravated assault. He explained that there must be dishonesty and deprivation. essentially, fraud will only vitiate consent in the sexual assault context where an accused’s objectively dishonest act has “the effect of exposing the person consenting to a significant risk of serious bodily harm” (para 128). The law in Canada is currently in flux. The SCC has heard and reserved judgment for two cases challenging the current state of the law of disclosing an HIV positive status to a partner.
The question that riddles adjudicators is how the significant risk of serious bodily harm is applied in a contemporary context. Obviously the risk of transmitting HIV to a sexual partner in the 1990s was a significant risk of serious bodily harm; however, little guidance was given in assessing whether something fell into the category of serious bodily harm. Cory J. simply stated that trivial harm would not meet the category. A large gray area was created in understanding the space between what the court would deem “trivial” and the “risk of contracting AIDS as a result of engaging in unprotected intercourse.” Is the emphasis on the serious bodily harm, or is it on the significant risk aspect? If something is very unlikely, but the consequences are severe, is that sufficient? What if instead, something is extremely likely, but the harm is not as serious?
The SCC must determine whether disclosure of HIV status where the risk of transmission is low because of factors dramatically reducing the risk (such as the use of condoms or an undetectable or low viral load). The Nova Scotia Court of Appeal must determine if pregnancy and that of abortion meet Cory J.’s test. The test from Cuerrier, while helpful fourteen years ago, has not been able to evolve at the pace of modern medicine.
Aggravated Sexual Assault
The SCC heard R v D.C. 2010 QCCA 2289 and R v Mabior 2010 MBCA 93 together this past February. The decision is currently on reserve, but will likely address the meaning of “significant risk of serious bodily harm.” Much like Cuerrier, D.C. and Mabior were both convicted by their respective trial judges for failing to disclose their positive HIV statuses to their sexual partners. With the progression of modern medicine in treating HIV, their viral loads at the time were so low that both cases were overturned on appeal. The provincial courts respectively did not find that the accused exposed their partners to a significant risk of contracting the virus, or to “serious bodily harm.” Presumably, the SCC will address this shift in analysis when it publishes its decisions on the matter.
The parallels between D.C., Mabior and Cuerrier are quite clear; in each case, the accuseds did not inform their sexual partners of their HIV positive statuses. The court must weigh the issue of balancing the risk of transmission with the severity of transmission. See here for an analysis of some of the social implications with these decisions. In the case of Hutchinson, however, at issue is the exposure to the risk of pregnancy (obviously the risk of transmitting an STI still existed) and consequently that of abortion. The Supreme Court of Nova Scotia (NSSC) did not provide an analysis on the risk of contracting an STI – likely because the point is moot on two bases. Firstly, Hutchinson did not have an STI (or there was no mention of one in the decision. I assume, that if Hutchinson did indeed have an STI at the time, his non disclosure would be a be analyzed in the court’s decision). Secondly, N.C. consented to sexual intercourse without a condom while she was menstruating. She put herself at risk of transmission during these times as well. Whatever the reason, this lower court chose not to discuss the matter.
R v Hutchison: A fair application?
Unfortunately, the NSSC quickly dismissed the case for aggravated sexual assault. There was little discussion about how the court could categorize the type of risk as being serious risk of significant bodily harm. Justice Coughlan went straight to s. 268(1) of the Criminal Code, stating:
Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
He did not find, beyond a reasonable doubt, that sabotaging the condoms Hutchinson used to impregnated Ms. C’s sufficiently endangered her life. The evidence indicated that there is a low risk of death resulting from pregnancy. Additionally, with abortions, the most common complication, post abortion syndrome, happens approximately 1% of the time. From this low risk, Justice Coughlan dismissed the charge of aggravated assault. In this, however, he placed a premium on risk and not severity.
While I concede that contracting an STI is different that becoming pregnant, they both pose risks to one’s health, and both can end in death. That being said, with the ability to lower and monitor viral loads, and the risk of transmission significantly lowered, as is the case in D.C and Mabior, would the same logic not hold true? If the risk of serious bodily harm was low enough, as Justice Coughlan determined was the case in choosing to have or abort the baby in R v Hutchinson, then D.C. and Mabior should be acquitted of aggravated assault. Moreover, will such an application apply solely to HIV/AIDS, or all STIs? Does it make a difference if it is treatable or curable? Is it limited to sexual intercourse or does this analysis apply to all forms of sexual activity? Surely, the stigma associated with certain STIs should not colour the way in which the law is applied.
Without the SCC’s decision in D.C and Mabior, which will hopefully clarify the standard of deprivation, it is unclear how the Court of Appeal ought to treat the risk of pregnancy in issues that exist in the grey areas of serious risk of significant bodily harm.
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