Fraud vitiates consent to sexual contact exposing the fraudulent party to criminal and civil prosecution. The Supreme Court of Canada addressed this today in a case involving ‘condom sabotage’.
In today’s case (R v. Hutchinson) the complainant “agreed to sexual activity with her partner, H, insisting that he use a condom in order to prevent conception. Unknown to her, H had poked holes in the condom and the complainant became pregnant.”. This led to conviction for aggravated sexual assault.
In upholding the conviction and discussing when fraud vitiates consent the Supreme Court of Canada reasoned as follows:
 The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation: Ewanchuk, at para. 36. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion (s. 265(3)(a) and (b)), fraud (s. 265(3)(c)), or abuse of trust or authority (ss. 265(3)(d) and 273.1(2)(c)).
 We conclude that the first step requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner. Mistakes on the complainant’s part (however caused) in relation to other matters, such as whether the partner is using effective birth control or has a sexually transmitted disease, are not relevant at this stage. However, mistakes resulting from deceptions in relation to other matters may negate consent at the second stage of the analysis, under the fraud provision in s. 265(3)(c) of the Criminal Code.
 Applying this template to the facts in this case leads us to conclude that, at the first step, the complainant voluntarily agreed to the sexual activity in question at the time that it occurred. The question is whether that consent was vitiated because she had been deceived as to the condition of the condom. This question is addressed at the second step. The accused’s condom sabotage constituted fraud within s. 265(3)(c), with the result that no consent was obtained. We would therefore affirm the conviction and dismiss the appeal.
When suing for damages for harm caused by others a Court needs to be satisfied that the allgations fueling the lawsuit took place. In the case of opposing versions of events if a Court can not pick one over the other the claim will be dismissed. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, with such an outcome.
In this week’s case (Fergusson v. Eyrl) the Plaintiff alleged “that he was sexually assaulted on numerous occasions” by the Defendant. The Defendant denied the allegations in their entirety. Ultimately the Court concluded that both parties versions of events were plausible and given that one could not be preferred over the other the claim was dismissed. In dismissing the claim Mr. Justice Melnick provided the following reasons:
 In sum, there is compelling evidence to suggest both that the assaults alleged occurred and that they did not. But, at its best, the case of Mr. Fergusson is evenly balanced with that of Mr. Eyrl. I am not satisfied that it is more probable than not that the claims of Mr. Fergusson against Mr. Eyrl have been made out.
Brief reasons for judgment were released recently by the BC Supreme Court, Duncan Registry, addressing whether a Plaintiff can continue with a lawsuit for damages for alleged historic sexual assault in the face of a Defendant filing for bankruptcy protection. In short the Court held this was possible.
In the recent case (Lundahl v. Poilievre) the Plaintiff was suing for damages alleging historic sexual assault and surreptitious recording. The Court provided the following reasons confirming both causes of action can survive bankruptcy protection:
 It is clear that the claim for sexual assault would, under s. 178(1), survive a discharge of bankruptcy. What may be more debatable are the components of the action dealing with the surreptitious videotaping. It was that latter part of the claim that the defendant focused on in opposing the stay.
 In my view, the main part of the action is the sexual assault. In spite of the defendant having pled guilty in a criminal trial, the videotaping may still be part of the evidence in the sexual assault trial as part of the background. So irrespective of whether the claim for the surreptitious videotaping alone would survive the bankruptcy, it is nevertheless intimately wrapped up with the other part of the action.
 The material prejudice to the plaintiff of the stay with respect to the sexual assault claim is that the action will be materially delayed, and in the interim she is suffering psychological harm. I think I can take judicial notice of the fact that once an action is commenced, victims prefer to have their trials sooner rather than later. In my view, s. 69.4 should be applied here to lift the stay.
 In addition, it appears to me the claim falls within a category of claims that the courts have not been willing to stay. It would be equitable, as well, under s. 69.4, to lift the stay.
 The stay will therefore be lifted with costs to the plaintiff.
In 1998 the Supreme Court of Canada held that failure to disclose HIV positive status could vitiate consent making otherwise consensual sexual encounters criminal in nature and further exposing the non-disclosing party to civil suits for damages for sexual assault. This reasoning has been controversial over the years and the Supreme Court of Canada revisited the issue in reasons for judgement released today.
In today’s case (R v. Mabior) Chief Justice McLachlin held that failure to disclose can still vitiate consent but not in all circumstances adding a “significant risk” factor to the analysis. The Court provided the following reasons:
 To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV. On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used. However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play.
Occasionally Canadian Courts make exceptions to the open court principle and allow litigants to sue under a pseudonym and further place publication bans in place. Reasons for judgement were released today by the Supreme Court of Canada grappling with these issues in the context of a ‘cyberbullying‘ lawsuit involving an infant plaintiff.
In today’s decision (AB v. Bragg Communications Inc.) the Plaintiff, a 15 year old girl, found someone ” had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. Accompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references.”. She commenced legal proceedings seeking to uncover the identity of the person who posted this. She further sought to do so anonymously and asked for the protection of a publication ban. In a unanimous decision the Supreme Court of Canada held that Plaintiff anonymity was appropriate in these circumstances but that a publication ban beyond information which could identify the Plaintiff was not warranted. Justice Abella provided the following reasons:
 In the context of sexual assault, this Court has already recognized that protecting a victim’s privacy encourages reporting: Canadian Newspapers Co. v. Canada (Attorney General),  2 S.C.R. 122. It does not take much of an analytical leap to conclude that the likelihood of a child protecting himself or herself from bullying will be greatly enhanced if the protection can be sought anonymously. As the Kids Help Phone factum constructively notes (at para. 16), protecting children’s anonymity could help ensure that they will seek therapeutic assistance and other remedies, including legal remedies where appropriate. In particular, “[w]hile media publicity is likely to have a negative effect on all victims, there is evidence to be particularly concerned about child victims. . . . Child victims need to be able to trust that their privacy will be protected as much as possible by those whom they have turned to for help”: Lisa M. Jones, David Finkelhor and Jessica Beckwith, “Protecting victims’ identities in press coverage of child victimization” (2010), 11Journalism 347, at pp. 349-50.
 Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities. (See e.g., UNICEF Innocenti Research Centre, Child Safety Online: Global challenges and strategies (2011), at pp. 15–16; and R. v. D.H., 2002 BCPC 464 (Can LII), at para. 8).
 If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully. ..
 The acknowledgment of the relative unimportance of the identity of a sexual assault victim is a complete answer to the argument that the non-disclosure of the identity of a young victim of online sexualized bullying is harmful to the exercise of press freedom or the open courts principle. Canadian Newspapers clearly establishes that the benefits of protecting such victims through anonymity outweigh the risk to the open court principle.
 On the other hand, as in Canadian Newspapers, once A.B.’s identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile. If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B. The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.
 I would allow the appeal in part to permit A.B. to proceed anonymously in her application for an order requiring Eastlink to disclose the identity of the relevant IP user(s). I would, however, not impose a publication ban on that part of the fake Facebook profile that contains no identifying information.
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).
In a rare judicial intervention into a lawyer’s practice, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, stripping a lawyer from all of his cases relating to the residential school Independent Assessment Process class action settlement. The Court determined it had jurisdiction to make such an order pursuant to section 12 of BC’s Class Proceedings Act.
In yesterday’s case (Fontaine v. Canada (Attorney General)) lawyer David Blott was on record ‘for approximately 2,900 (IAP) claimants‘. ‘Concerns‘ were raised with respect to this lawyer’s practice. These led to an investigation of the lawyers practice resulting in a final report with various troubling findings (these are highlighted at paragraphs 17 and 18 of the reasons for judgement).
An application was made seeking significant judicial intervention including an order stripping the lawyer of all of his IAP files. In granting this extraordinary relief, Madam Justice Brown provided, amongst other criticism, the following comments:
 The conclusion of the LSA panel regarding Mr. Blott’s conduct bears repeating:
But after considering all of the evidence in this matter and hearing Mr. Blott, we continue to be concerned that Mr. Blott does not appear to understand what it means to be a lawyer. We are concerned that Mr. Blott appears not to recognize that his primary role is as a fiduciary and everything else is secondary.
 I share the LSA’s concern that Mr. Blott does not understand what it means to be a lawyer. Further, while I also understand the desire to avoid additional victimization of the members of an already-vulnerable class, a more lasting remedy than the interim measure implemented by the LSA is required. The process approved by the LSA, and advanced by Mr. Blott on this application, would see at least 1,500 clients moved from the Blott firm to other lawyers in any event. Viewed in that light, the issue is not whether disruption will be experienced by Blott clients, but rather the number of clients who will experience it.
 It would be far better to have this client transfer process conducted under the supervision of the court and it is necessary for the integrity of the process and the protection of the clients that it be a complete transfer. Therefore, I will accept and implement the Monitor’s recommendation in respect of the removal of David Blott, David Blott Professional Corporation, Blott & Company, and any associated entity from the current or future representation of claimants in the IAP or any other process embodied in the settlement.
The Australian Broadcast Corporation has recently been reporting on their Nation’s inquiry into historic sexual abuse involving religious organizations.
In the context of this story I had the pleasure to participate in a recent interview with ABC’s Anita Barraud discussing the circumstances when Canadian Courts will allow a damage claim to succeed not just against the perpetrator of the abuse but also against the organization itself under the doctrine of ‘vicarious liability‘. An audio clip of my interview can be found here which aired in Australia earlier today:
For those of you visiting this site looking for more information regarding Canada’s application of vicarious liability in the context of civil damage claims for sexual abuse you can click here to access my archived post addressing this topic.
With more victims of historic childhood sexual abuse prepared to come forward and have their claims heard we have the benefit of more decisions being published by the BC Courts addressing the circumstances when an institution will be held vicariously liable for sexual abuse by their employees. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this area of law.
In last week’s case (R.G. v. Vancouver Police Board) the Plaintiff alleged to be the victim of historic sexual abuse at the hands of the Defendant police officer. (its worth noting the Court made no findings about whether the abuse actually took place).
In his childhood the Plaintiff “alternated between living with his parents….and living with Mr. Hughes“. They formed what was described as a father-son relationship. The Plaintiff alleged he was abused in the course of this relationship. The Defendant was a member of the Vancouver Police Department at the time.
The Plaintiff sued the personal defendant and also the City of Vancouver arguing they were vicariously liable for the abuse. Mr. Justice Burnyeat disagreed and dismissed this portion of the Plaintiff’s claim. In finding no employer vicarious liability should arise in these circumstances the Court provided the following reasons:
 The Plaintiff submits that society teaches children from an early age to trust police officers and that makes children and young people particularly vulnerable to the abuse of power by police officers. In the circumstances, the Plaintiff submits that the City “has sufficient control, either directly or indirectly through its constant presence on the Board, to be vicariously liable for Hughes’ wrongdoing”, and that the City “had sufficient power over him through his extracurricular activities – pistol shooting competitions and fishing derbies, during which his abuse of … [the plaintiff] continued that it should be held vicariously liable”.
 If I could conclude that Mr. Hughes was an employee of the City, I could not conclude that his wrongful acts were sufficiently related to conduct authorized by the City. I can find no “significant connection”. I can only find that there were incidental connections between the abuse that occurred and the location of the abuse. Many of the alleged abuses took place in VPD vehicles. However, the power that was exerted by Mr. Hughes was the power flowing from the “father-son” relationship which had grown and not any relationship between the Plaintiff and Mr. Hughes as a police officer. As well, the fact that Mr. Hughes was granted access to a VPD police vehicle did not afford any particular ability for Mr. Hughes to abuse his power.
 In rejecting the submission made on behalf of the Plaintiff, I cannot conclude that the wrongful acts of Mr. Hughes are sufficiently related to conduct authorized by the City to justify the imposition of vicarious liability. There is not a significant connection between any promotion by the City and by society in general to promulgate the message that children should be taught from an early age to trust police officials and the significant wrongs that are alleged to have occurred.
Last year the BC Supreme Court refused to certify a class action for victims of sexual abuse at the hands of a corrections guard employed by the Province of BC. While the Plaintiff and the Province of BC wished to have the matter certified Mr. Justice Grauer was concerned that inadequate notice provisions and a short opt-out provision would result in some victims losing their right to sue.
The parties attempted to address these concerns by creating more meaningful notice provisions and a more generous period for plaintiffs to advance their claims. They re-applied for certification. In reasons for judgement released this week (Lakes v. MacDougall) Mr. Justice Grauer once again rejected the proposed class action finding the limitation period created by certification would be too prejudicial for victims of historic sexual abuse. In dismissing the application Mr. Justice Grauer provided the following reasons:
 Here is the situation. For those of MacDougall’s victims who have already come forward and consulted counsel, there is no problem. If they have already commenced litigation, they are deemed to have opted out, and otherwise may do so if they wish within the 90-day period provided. They already have the advantage of access to legal counsel and will have no difficulty in exercising their options. Consequently, it does not surprise me that the clients of Mr. Poyner and those of Mr. Simcoe support the proposed settlement.
 But what of the rest of the proposed class, who remain unidentified? The evidence before me clearly establishes the roadblocks that inhibit these victims from breaking silence and coming forward to disclose the abuse they suffered. They are accordingly particularly vulnerable to losing their claims through the effluxion of time. This is exacerbated by notice provisions that, while likely to ensure maximum dissemination to those still in the prison population, offer little hope of reaching those in more isolated circumstances.
 It is no answer, in my view, to say that these victims may avoid the risk of losing their rights by simply filing a single piece of paper to opt out within the 90-day period mandated for doing so. That is a very short time in the context we are discussing. Once it has passed, they may no longer opt out; they are left with 21 months within which to file a claim, failing which they are forever barred.
 It is my respectful opinion that this additional time remains insufficient to counterbalance the prejudice to this particular group arising from the imposition of a limitation period where none previously existed. Those members of the class who remain unidentified still face the prospect of losing more than they and the rest stand to gain should the settlement be approved and the action certified. The amended terms represent an improvement, but not enough. It is not open to me to craft acceptable settlement terms, or to impose them.
 In the circumstances, I conclude that the parties have failed to establish that a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issue raised in this matter. The proposed procedure does, in my view, offer certain procedural advantages to the proposed class, as discussed above. These are not, however, sufficient to offset the continuing risk of severe prejudice to this vulnerable population to which the terms of the settlement agreement give rise.