R. v. Cuerrier

HEADNOTE

The respondent was HIV-positive and had unprotected sex with two women. He had not disclosed his HIV status to either. The respondent was charged with two counts of aggravated assault pursuant to sections 265 and 268 of the Criminal Code. The Supreme Court considered the issue of whether failure to disclose HIV status constituted fraud that would vitiate consent to sex under s 265 of the Criminal Code. The Supreme Court found that where a person obtained consent to sex without disclosing his or her HIV-positive status, the consent was obtained by fraud which would vitiate this consent.
FACTUAL AND PROCEDURAL BACKGROUND

The respondent, Henry Cuerrier, tested positive for HIV in 1992. A public health nurse told him to disclose that he was HIV-positive to all sexual partners and to use a condom for all sexual intercourse. Shortly after receiving this diagnosis, Cuerrier began a relationship with a new partner, KM. During the course of the relationship, Cuerrier and KM engaged in unprotected sex. When she asked about sexually transmitted diseases, Cuerrier had told KM that he had tested negative for HIV eight or nine months earlier. After KM developed hepatitis, both KM and Cuerrier underwent tests for HIV, after which KM was informed that Cuerrier was HIV-positive. Cuerrier was again told that he must inform his sexual partners of his HIV-positive status and use condoms. When Cuerrier’s relationship with KM ended, a public health nurse sent him letters ordering him to disclose his HIV status to all sexual partners and to use condoms. Cuerrier began a relationship with BH, during which Cuerrier did not inform BH that he was HIV positive and the pair often engaged in unprotected sex. BH later discovered that Cuerrier was HIV-positive. Both KM and BH testified that they would not have had unprotected sexual intercourse with Cuerrier had they known he was HIV-positive. At the time of trial, neither complainant had tested HIV-positive.
The respondent was charged with two counts of aggravated assault pursuant to sections 265 and 268 of the Criminal Code. At trial, the judge considered that by engaging in sexual intercourse while knowing he was HIV-positive status had endangered the complainants under s 268, he found that the complainants’ consents were not vitiated by fraud because the fraud must be related to “the nature and quality of the act or the identity of the offender.” He further stated that although the grounds for vitiating consent in s 265 were not exhaustive, the provision was not designed to contain the spread of HIV/AIDS, but to prevent non-consensual applications of force beyond what could normally be expected in sexual intercourse. Although the respondent’s actions were found to be “repugnant and deserving of punishment,” he was acquitted at trial. The British Columbia Court of Appeal upheld the acquittal on the basis that the respondent had not exceeded the amount of force involved in the sexual acts he engaged in with the complainants and that the complainants had only been exposed to the risk of physical injury. On appeal to the Supreme Court of Canada, the issue was whether consent obtained by someone who knows he is HIV-positive but does not disclose his status or deliberately deceives his partner about it has committed fraud under s 265(3)(c) of the Criminal Code which vitiates his partners’ consents.
RELEVANT LEGAL PROVISIONS
Section 265 of the Criminal Code - Assault
265. (1) A person commits an assault when
(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
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Section 268 of the Criminal Code – Aggravated Assault
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.
(2) Every one who commits an aggravated assault is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
The Court held that consent to sexual intercourse is vitiated by fraud under s 265 of the Criminal Code where someone who knows he or she is HIV-positive fails to disclose his or her HIV status or deliberately deceives his or her partner as to his or her HIV status. First, the Court determined that fraud under s 265(3)(c) does not only refer to fraud related to the nature and quality of the act. The essential elements of fraud are deliberate dishonesty, which includes non-disclosure of important facts, and deprivation or the risk of deprivation of the victim. Because the risk of HIV infection has serious and sometimes fatal consequences, the Court found that non-disclosure or concealment of the accused’s HIV-positive status was considered fraud which vitiates consent to sexual intercourse. Finally, the Court found that obtaining consent to sexual intercourse without disclosing HIV status satisfied the requirements for fraud, namely deliberate dishonesty and deprivation. With regards to the deprivation requirement, the Court observed that the Crown must demonstrate that the accused’s dishonesty (whether through deceit or non-disclosure) exposed the complainant to a “significant risk of serious bodily harm.” In this case, the risk of contracting HIV/AIDS through unprotected sex exposed both complainants to a “significant risk of serious harm to their health.”
The Court observed that although there are public health schemes in place to control the spread of HIV/AIDS, the criminal law may deter people who are HIV-positive from putting people at risk through failing to disclose their HIV status and having unprotected sex. The Court also did not accept the argument that criminalization of non-disclosure of one’s HIV-positive status to sexual partners would deter people living with or at risk of contracting HIV/AIDS from seeking testing if it was possible that they would face criminal charges later on. Instead, the Court believed that members of high-risk groups would choose to be tested in order to receive treatment. In response to the argument that applying criminal sanctions to non-disclosure of HIV status would detract from the public health message that everyone is responsible for protecting themselves from HIV, the Court observed that people who know that they are already infected have a fundamental responsibility to take steps to protect their sexual partners’ health.
In her concurring opinion, Justice L’Heureux-Dubé considered that fraud occurred where a dishonest act caused another to consent to the sexual contact, regardless of whether the contact was risky or dangerous. The focus for Justice L’Heureux-Dubé was whether the accused’s deceitful behavior deprived the complainant of his or her ability to exercise his or her right to bodily integrity. In their concurring opinion, Justice Gonthier and Justice McLachlin’s proposed that in the limited circumstances of non-disclosure of sexually-transmitted diseases would fraud vitiate consent, representing an incremental change to the law.

“Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV-positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV-positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent. The Extent of the duty to disclose will increase with the risks attendant upon the act of intercourse. To put it in the context of fraud the greater the risk of deprivation the higher the duty of disclosure. The failure to disclose HIV-positive status can lead to a devastating illness with fatal consequences. In those circumstances, there exists a positive duty to disclose. The nature and extent of the duty to disclose, if any, will always have to be considered in the context of the particular facts presented.” (Para 127)
“Where public health endeavours fail to provide adequate protection to individuals like the complainants, the criminal law can be effective. It provides a needed measure of protection in the form of deterrence and reflects society’s abhorrence of the self-centered recklessness and the callous insensitivity of the actions of the respondent and those who have acted in a similar manner. The risk of infection and death of partners of HIV-positive individuals is a cruel and ever present reality…The risks of infection are so devastating that there is a real and urgent need to provide a measure of protection for those in the position of the complainants. If ever there was a place for the deterrence provided by criminal sanctions it is present in these circumstances. It may well have the desired effect of ensuring that there is disclosure of the risk and that appropriate precautions are taken.” (Para 142)