Summary

35176

Craig Jaret Hutchinson v. Her Majesty the Queen

(Nova Scotia) (Criminal) (As of Right)

(Publication ban in case)

Keywords

None.

Summary

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Criminal law - Sexual assault - Consent - Meaning of “sexual activity in question” in s. 273.1(1) of Criminal Code - Whether the Court of Appeal erred in law by incorrectly interpreting the definition of consent in s. 273.1 of the Criminal Code, R.S.C. 1985, c. C 46, and the circumstances in which consent is vitiated, as set out in s. 265(3) of the Criminal Code.

Mr. Hutchinson was charged with aggravated sexual assault for poking holes in the condoms he used with his partner, knowing she did not want to get pregnant. At his first trial, he was acquitted on a directed verdict, but the Court of Appeal reversed that decision and ordered a new trial. At retrial, Mr. Hutchinson was convicted of sexual assault because the trial judge found that while the complainant may have consented to the sexual intercourse, she did not consent to unprotected sexual intercourse. Mr. Hutchinson appealed his conviction, arguing that the complainant freely and voluntarily consented to having sexual intercourse with him and that his deception over the condoms, however reprehensible, was not enough to vitiate that consent. The majority of the Court of Appeal dismissed the appeal. Farrar J.A. would have allowed the appeal and ordered a new trial on the basis that the trial judge erred in finding that there was no consent under s. 273.1(1) of the Criminal Code, and that the proper approach would have been to determine whether consent was vitiated by fraud under s. 265(3)(c).

Lower Court Rulings

November 16, 2011
Supreme Court of Nova Scotia, Trial Division

CRH 328502, 2011 NSSC 361
See file
January 3, 2013
Nova Scotia Court of Appeal

CAC 370497, 2013 NSCA 1
Appeal dismissed