SOC323H5 Chapter Notes -Precautionary Principle, Determinative, Independent Community And Health Concern

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Published on 28 Nov 2012
HIV, Consent, and Criminal Wrongs- Carissima Mathen and Michael Plaxton
In 1988, the SCC concluded that failure to disclose HIV positive status attracted criminal culpability though it
was no unanimous on precise contours of liability
Cases were to be analyzed under rubric assault, in particular aggravated assault which required knowing
“endangerment” of complainant‟s life/health
Critics argue that use of criminalization is not suited to what is a public health concern
R.v. Mabior and R.v.C. (D.)
o These cases ask if Cuerrier remains the optimal framework for analyzing scope of criminal liability in
cases of deliberate failure to disclose HIV-positive status
Cuerrier relied on concept of fraud and central to its analysis is “harm”
o Authors suggest that court should reconsider Cuerrier case and engage more with boundaries of sexual
Landscape of Cuerrier
1998 SCC- assault provisions under CC adequate to hold someone who fails to disclose HIV(+) status to sexual
Henry Cuerrier tested positive for HIV in 1992 when he was instructed to use condoms and to inform sexual
partners of his status
Met two women (KM and BH); had unprotected sex with KM who repeatedly asked about STDs but HIV in
particular continued to have unprotected sex after KM found out about Cuerrier‟s status
Later had a relationship with BH and had unprotected sex several times
Both women testified if they knew of his status, they wouldn‟t have had unprotected sex with him; neither
complainant tested positive for HIV by time of trial
Charged with two counts of aggravated assault
Cuerrier acquitted and this decision was upheld by Court of Appeal of BC; SCC set aside this verdict and ordered
new trial
Justice Corry, Justice McLachlin and Justice Gontheir and Justice L‟Heureux Dube
o All opinions take statutory provisions defining assault as non-consensual application of force
Chief question in Cuerrier was whether “fraud” in s.265(3)(c) includes use of deception concerning HIV status to
induce consent to sexual relations
o The words “fraud as to nature and quality of act” corresponded to old common law rule that consent to
sex was vitiated if complainant gave it (a) under misrepresentations as to nature of sexual act or (b) under
a deliberately induced misunderstanding going into identity
Ultimately, the entire court agreed that new approach was warranted; different views on what it should be
All justices agreed that appropriate ground of inquiry was s.265(3)(c) and focused on what constitutes “fraud”
While all opinions reference offence of sexual assault, none of them engage with specific Code provisions enacted
in 1992 which for the first time said consent as an functioning and distinct concept for sexual offences, including
conditions under which (a) consent to sexual activity does not obtain and (b) the accused can rely on defence of
honest but mistaken belief in consent
Decision doesn‟t engage in depth the public health implications of criminalizing the non-disclosure of one‟s HIV-
positive status
Criminalization of non-disclosure would discourage testing, undermine education efforts or unfairly stigmatize
those who are HIV positive
Post-Currier Universe
Case requires us to ask if risk posed by defendant is “significant”; Decide which risks are sufficient to ground
criminal liability and which are not
Cuerrier doesn‟t sufficiently acknowledge sexual assault‟s uniqueness within the “family” of assault offences,
and so fails to recognize that deception about sexual health can vitiate consent whether or not there is a significant
risk of bodily harm
(1) Significant Risk
Since the majority focused on unprotect sex, it is not clear whether criminal liability for aggravated assault should
attach to defendant who failed to disclose but used condoms
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