Court of Appeal

                                NOVA SCOTIA COURT OF APPEAL

Citation: R. v. Hutchinson, 2013 NSCA 1

Date: 20130103

Docket: CAC 370497

Registry: Halifax

Between:                                                              

Craig Jaret Hutchinson

Appellant

v.

Her Majesty The Queen

Respondent

Restriction on publication:       Section 486.4(1) of the Criminal Code of Canada

JUDGE:                                   MacDonald, C.J.N.S.

Farrar, J.A. (Dissenting)

APPEAL HEARD:                  June 4, 2012, in Halifax, Nova Scotia

SUBJECT:       Criminal Law; sexual assault; consent; meaning of “sexual activity in question”- s. 293.1(1) of the Criminal Code; principles of sentencing

SUMMARY:    The appellant tried to trick his partner into becoming pregnant by poking holes in the condoms they used during intercourse. He knew full well that she did not want to become pregnant. In fact, she insisted on him wearing the condoms for that very reason.

For these actions, the appellant was charged with sexual assault.

Pursuant to s. 273.1(1) of the Criminal Code, the Crown had to prove  that the Complainant did not consent to the “sexual activity in question” . At trial, the issue involved whether, for the purposes of s. 273.1(1), the “sexual activity in question” was simply sexual intercourse (which was consented to and therefore would have lead to an acquittal)  or unprotected sexual intercourse which was not consented to. The trial judge chose the latter and convicted the appellant. He was sentenced to 18 months in jail.

ISSUE:            The appellant challenges both the conviction and the sentence.

RESULT:        MacDonald, C.J.N.S.: (for the majority)

The judge was correct to conclude that the “sexual activity in question” [as envisaged in s. 273.1(1) of the Criminal Code] was unprotected sex which the complainant did not consent to. With all other elements of the offence made out, the appeal against conviction should therefore  be dismissed.

The sentence was not demonstrably unfit, nor did it reflect an error in principle.  Therefore, the appeal against sentence should also be dismissed.

Farrar, J.A.: (dissenting)

The trial judge erred in finding there was no consent under s. 273.1(1) of the Criminal Code.  The proper approach would have been to determine whether consent was vitiated under s. 265(3)(c) by fraud.  The appeal should be allowed and a new trial ordered.