R. v. Cuerrier - British Columbia Review Board

R. v. Cuerrier
122 The Clarence decision rejected the broad approach to fraud set out in Bennett and
Sinclair. There the court held that non-disclosure of a venereal infection was not related to the nature of
the act of sexual intercourse and therefore the fraud did not vitiate the consent. For the reasons set out
earlier neither the reasoning or conclusion reached in Clarence are acceptable.
123 The deadly consequences that non-disclosure of the risk of HIV infection can have on an
unknowing victim, make it imperative that as a policy the broader view of fraud vitiating consent
advocated in the pre-Clarence cases and in the U.S. decisions should be adopted. Neither can it be
forgotten that the Criminal Code has been evolving to reflect society's attitude towards the true nature of
the consent. The marital rape exemption was repealed in Canada in 1983. The defence of mistaken belief
in consent was narrowed in the 1992 amendments. Section 273.2(b) eliminated consent as a defence to
sexual assault in situations where the accused did not take reasonable steps to ascertain that the
complainant was consenting.
124 In my view, it should now be taken that for the accused to conceal or fail to disclose that he is
HIV-positive can constitute fraud which may vitiate consent to sexual intercourse.
D. Will There Be a Valid Consent in the Absence of Disclosure?
125 Persons knowing that they are HIV-positive who engage in sexual intercourse without advising
their partner of the disease may be found to fulfil the traditional requirements for fraud namely
dishonesty and deprivation. That fraud may vitiate a partner's consent to engage in sexual intercourse.
126 The first requirement of fraud is proof of dishonesty. In light of the provisions of s. 265, the
dishonest action or behaviour must be related to the obtaining of consent to engage in sexual intercourse,
in this case unprotected intercourse. The actions of the accused must be assessed objectively to
determine whether a reasonable person would find them to be dishonest. The dishonest act consists of
either deliberate deceit respecting HIV status or non-disclosure of that status. It cannot be forgotten that
the act of intercourse is usually far more than the mere manifestation of the drive to reproduce. It can be
the culminating demonstration of love, admiration and respect. It is the most intimate of physical
relations and what actions and reactions led to mutual consent to undertake it will in retrospect be
complex. It would be pointless to speculate whether consent would more readily follow deliberate
falsehoods than failure to disclose. The possible consequence of engaging in unprotected intercourse
with an HIV-positive partner is death. In these circumstances there can be no basis for distinguishing
between lies and a deliberate failure to disclose.
127 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 HIVpositive.
True consent cannot be given if there has not been a disclosure by the accused of his HIVpositive
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
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