R. v. Cuerrier - British Columbia Review Board

R. v. Cuerrier
88 Finally, he considered the Crown's argument that, because of the serious nature of the risk to
which the complainants were exposed, public policy should intervene to vitiate their consent. This
argument was based on R. v. Jobidon, [1991] 2 S.C.R. 714, which found that the vitiating factors listed
in s. 265(3) were not exhaustive and that limited grounds exist upon which a court could base its
conclusion that consent is vitiated on policy grounds. This same argument was advanced in Ssenyonga,
supra, where it was found at p. 265 that the assault provisions of the Code were not designed to control
the spread of AIDS, rather they were intended to "control the non-consensual direct or indirect
application of force by one person to another".
89 The trial judge concluded that although the accused's actions were repugnant and deserving of
punishment, it would overstretch the offence of assault or aggravated assault to apply them to this
case. He therefore allowed the application for a directed verdict and acquitted the accused.
B. British Columbia Court of Appeal (1996), 141 D.L.R. (4th) 503
90 Prowse J.A. began by reviewing the legislative and jurisprudential history of the fraud provision
and noted that prior to the removal of the words "nature and quality of the act", the case law had
narrowly defined the types of fraud which could vitiate consent. Further, she concluded that the Code
amendments were not intended to broaden the categories of fraud which would vitiate consent, and that
the trial judge was correct in following the decision in Petrozzi, supra.
91 Prowse J.A. then considered whether a valid consent to sexual intercourse had to be an informed
consent. She rejected the submission that the informed consent doctrine developed in Norberg v.
Wynrib, [1992] 2 S.C.R. 226, should be applied in this case for two reasons. First, she did not find that
the inequality of information which existed between the complainants and the respondent resulted in the
power imbalance or exploitation contemplated in Norberg. Second, she was reluctant to import
informed consent principles from tort law into the realm of criminal law.
92 Prowse J.A. also rejected the Crown argument that the respondent's conduct exceeded the scope
of the complainants' consent. She concluded that the sexual acts engaged in by the respondent and the
complainants involved no more force than is naturally inherent in the sexual act.
93 Finally, Prowse J.A. considered whether the complainants' consent should be rendered
ineffective on grounds of public policy. She found it significant that the complainants in this case did
not suffer physical injuries but were only exposed to the risk of injury. This was very different from the
position presented in Jobidon, supra, where this Court vitiated a complainant's consent to engage in a fist
fight where the force applied caused serious harm. Prowse J.A. concluded that the criminal law of
assault is not the proper legal mechanism for dealing with the problem of HIV/AIDS transmission and
she refused to create another category of conduct which would vitiate consent.
III. Relevant Statutory Provisions
http://ql.quicklaw.com/qltemp/C2KEwCMAFbZMTYcs/00011scr-00019415%2ehtm (30 of 44)2007-08-21 1:18:15 PM