A Nova Scotia man who sabotaged condoms so he could keep his girlfriend from leaving him by getting her pregnant is guilty of sexual assault, the Supreme Court of Canada has ruled.
The sabotage was an act of fraud that nullified the woman’s consent, four of the judges said, in reasons written jointly by Chief Justice Beverley McLachlin and Justice Thomas Cromwell of Nova Scotia. Citing earlier rulings in which men and women did not tell their sex partners they had HIV, the virus that causes AIDs, the four judges said that the key issue is whether the dishonesty poses a risk of serious harm – not necessarily physical harm.
Three other judges, all from Ontario, offered a different set of reasons for why the man was guilty, focusing on the right to determine how sexual activity takes place. The first four judges criticized that approach, saying it would leave people uncertain about what was criminal and what wasn’t in private behaviour, and could lead to women being charged with sexual assault for lying about using a diaphragm.
The case involved a Nova Scotia man who poked holes in condoms and got his girlfriend pregnant. She had an abortion, and when he told her what he had done, she went to police.
The case has been before the courts for seven years. Craig Hutchinson was acquitted at his first trial, but the Nova Scotia Court of Appeal overturned that finding and he was convicted at his second trial, a verdict upheld by the appeal court by a 4-1 count.
The dissenting judge on that appeal court argued the case pushed protection of women’s autonomy too far, and that a guilt finding would lead to increased and unwarranted criminalization —including of women who lie about being on the Pill in hopes of becoming pregnant.
The Nova Scotia government argued that societal umbrage at the man’s behaviour is not enough; it demands a criminal prosecution because the criminal law needs to protect equality, dignity and autonomy.