Fraud vitiating sexual consent

R. v. Hutchinson 2014 SCC 19:

[67]                          As we have seen, "fraud" for the purposes of consent has two elements: (1) dishonesty, which can include the non-disclosure of important facts; and (2) deprivation or risk of deprivation in the form of serious bodily harm which results from the dishonesty: Cuerrier. Did the Crown prove that no consent was obtained by virtue of fraud?

[68]                          The dishonesty in this case is evident and admitted. Mr. Hutchinson obtained the complainant's consent to sexual intercourse only by failing to disclose the critical fact that he had sabotaged the condoms and thereby compromised their contraceptive value. The only remaining issue is whether there was a sufficient deprivation to establish fraud. 

[69]                          Mr. Hutchinson argues that the universal threshold for deprivation under s. 265(3)(c) post-Cuerrier is a "significant risk of serious bodily harm", and that the Crown did not establish that here.  The Crown argues that a new trial is required to determine whether the risk of pregnancy caused by the sabotaged condoms constituted a "significant risk of serious bodily harm". These arguments over-read Cuerrier.  The Court in Cuerrier was addressing the specific risk of sexually transmitted diseases.  It did not foreclose the possibility that other types of harm may amount to equally serious deprivations and therefore suffice to establish the requirements of fraud under s. 265(3)(c).

[70]                          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).

[71]                          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).