BC Court of Appeal Confirms Non-Disclosure of HIV Status Can Vitiate Consent to Sexual Contact
The BC Court of Appeal released reasons for judgement today (R v. Nduwayo) confirming that failure to disclose HIV positive status can vitiate consent to sexual contact thereby making an otherwise consensual sexual encounter a criminal assault (or a matter that can give rise to a civil claim for damages). It is worth noting that the Supreme Court of Canada is expected to deliver reasons for judgements in the fall addressing this same topic in other litigation.
The BC Court of Appeal provided the following summary of the legal framework:
Legal Framework for Consent Obtained by Fraud in Sexual Offences
 The question of when fraud will vitiate consent in the context of sexual acts was considered and determined in R. v. Cuerrier,  2 S.C.R. 371. In three concurring judgments, the Court agreed, on the facts in that case, that deceit as to HIV-positive status that induces consent constitutes fraud in sexual offences.
 Mr. Cuerrier, who knew he was HIV-positive, was charged with aggravated assault in relation to two women with whom he had sexual intercourse without disclosing his HIV status. Both said they would not have consented to sexual intercourse with him had they known his condition. Neither contracted HIV from Mr. Cuerrier. He was acquitted at trial, and the acquittals were upheld by the Court of Appeal.
 The first element in s. 273(1), whether Cuerrier’s acts “endangered the life of the complainant”, was found to be satisfied by all three levels of court. In the majority reasons, Cory J. said this:
 … There can be no doubt the respondent endangered the lives of the complainants by exposing them to the risk of HIV infection through unprotected sexual intercourse. The potentially lethal consequences of infection permit no other conclusion. Further, it is not necessary to establish that the complainants were in fact infected with the virus. There is no prerequisite that any harm must actually have resulted. This first requirement of s. 268(1) [now 273(1)] is satisfied by the significant risk to the lives of the complainants occasioned by the act of unprotected intercourse.
 The Court then examined the question of consent and fraud. Major changes to the legislation in relation to sexual offences occurred in 1983. Mr. Justice Cory concluded that these amendments encompassed changes to the definition of consent obtained by fraud. He found that the definition was no longer limited by requiring that the fraud had to relate to the nature and quality of the act. He concluded, at para. 108, that the law in relation to economic fraud could, with appropriate modifications, be applied.
 After examining the leading cases in which criminal fraud was defined (R. v. Olan,  2 S.C.R. 1175; R. v. Théroux,  2 S.C.R. 5; R. v. Zlatic,  2 S.C.R. 29), Cory J. concluded, at para. 116, that “the essential elements of fraud are dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation”.
 Mr. Justice Cory then considered the type of fraud or fraudulent conduct that would vitiate consent in cases of sexual assault. He examined previous cases in which non-disclosure of a sexually transmitted disease either amounted to fraud (R. v. Bennett (1866), 4 F. & F. 1105, 176 E.R. 925; R. v. Sinclair (1867), 13 Cox C.C. 28; State v. Lankford, 102 A. 63 (Del. Ct. Gen. Sess. 1917)) or did not (R. v. Clarence (1888), 22 Q.B.D. 23). He considered the “deadly consequences” that non-disclosure of the risk of HIV infection can have and concluded at para. 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.
 In order to establish that consent was obtained by fraud, the Crown first has to establish dishonesty. This is established on an objective standard. Dishonesty may be established either by an accused’s deliberate act of deceit in relation to his or her HIV status or by passive non-disclosure of the status. The Court concluded at para. 127, on the evidence before it, that true consent could not be obtained without the disclosure of HIV status. The second aspect of fraud vitiating consent is deprivation, which can be shown by actual harm, which is more than trivial, (Cuerrier at para. 128) or the risk of significant serious bodily harm.
 The mens rea for fraud is that the accused must knowingly be dishonest and aware that deprivation could result from that dishonesty (Cuerrier at para. 114).
 The Crown must also prove that the complainant would not have consented had he or she known the accused was HIV positive (Cuerrier at para. 130).
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