In December of 2016, the 17-year-old complainant was a troubled young woman who wrestled with anxiety, alcohol and thoughts of suicide. On December 28, 2016, the complainant went with the respondents (“TF”, “AE” and a young person who is protected by the YCJA) to a residence and engaged in sexual activity. During the course of the sexual acts, the complainant was assaulted and abused. The three males engaged in various sexual acts including vaginal and oral intercourse. During this time, the complainant was repeatedly struck, verbally abused and violated with an electric toothbrush. Part of the intercourse was videotaped, initially without the complainant’s knowledge. The complainant testified that she did not consent to the activities, but the respondents maintained that she did consent.
At trial, the judge acquitted TF of sexual assault and sexual assault with a weapon but convicted AE of sexual assault with a weapon. The third accused, a young offender, pled guilty in Youth Court to one count of sexual assault. The young offender was dealt with pursuant to the Youth Criminal Justice Act in a separate youth proceeding. The Crown appealed all acquittals.
Court of Appeal of Alberta
On appeal, the Crown argued that the trial judge erred: i) in finding that the complainant’s broad advance consent was valid; ii) in making irreconcilable findings of fact regarding consent; iii) by failing to properly consider whether TF was a party to the assault with the toothbrush; and iv) in failing to consider whether the surreptitious video recording vitiated consent.
The majority of the Court of Appeal found that the trial judge erred in assuming that because the complainant consented to rough sex at the outset, that she had consented to all activities that took place. Consent to each and every sexual act at the time of its occurrence is required for there to be consent to sexual activity. The Court found that the trial judge did not consider whether the complainant withdrew her consent before being violated by the toothbrush. On these errors, the Court of Appeal found the verdict of acquittal on the sexual assault with a weapon could not stand.
This case comment will focus on the Alberta Court of Appeal’s decision that the surreptitious video recording vitiated consent. Fraud, for the purpose of vitiating consent, has two elements: (1) dishonesty, which can include the non-disclosure of important facts; and (2) deprivation, or risk of deprivation, in the form of serious bodily harm which results from the dishonesty. The court decided that videotaping sexual acts without the consent of the other individual is a violation of a person’s dignity and privacy. The Court of Appeal found the video recording satisfied the first branch of the test. The court also found that psychological harm was included under the category of serious bodily harm based on the serious psychological impacts a video recording could cause the complainant. The Court, therefore, found the complainant’s consent was vitiated by fraud.
Sexual Assault or Voyeurism?
Section 265(3)(c) codifies that fraudulent circumstances can negate consent. The most jurisprudence on fraud vitiating consent exists where a complainant is deceived or misinformed: as to the use of contraceptives; the identity of the person; or the accused’s HIV status. Traditional cases of fraud outline the requirements for a successful claim. R v Hutchinson 2014 SCC 19 explained that poking holes in condoms is considered fraud that vitiates consent. Increasing the risk of pregnancy is sufficient to establish a fraud because it increases the risk of serious bodily harm. Further, in R v GC, 2020 ONSC 1143 the victim’s consent was invalidated when she had sex with her boyfriend’s twin brother believing that it was her boyfriend. The court decided that the appellant should have taken reasonable steps necessary to ascertain that the complainant was consenting. As the appellant was pretending to be his twin brother, his identity was considered fraud vitiating consent.
The jurisprudence regarding fraud vitiating consent has developed substantially in cases involving individuals with HIV not disclosing their health status to sexual partners. The guiding principles were first developed in R v Cuerrier [1998] 2 SCR 371, 162 DLR (4th) 513. Cuerrier explained that when someone does not disclose their HIV positive status that it can, in certain circumstances, be considered fraud. However, this depends on the actual risk of transmission. The greater the risk, the greater the duty to disclose. This concept further developed in 2012 with the decision of R v Mabior, 2012 SCC 47. Mabior found the Cuerrier test was valid in principle and attempted to build greater certainty into its application. The court in Mabior established that where there is a realistic possibility of transmission of HIV, a significant risk of bodily harm is established. There will not, however, be a significant risk of bodily harm if the accused’s viral load is low and a condom was used. In such cases, non-disclosure of HIV status will not be considered fraud vitiating consent because there is no real risk of bodily harm or transmission of the virus.
The court’s reasoning in R v A.E. runs contrary to the law as developed in cases of HIV non-disclosure in the context of fraud vitiating consent. If an individual has a low viral load and uses a condom at the time of the sexual activity, then they pose no risk to a complainant. If the individual poses no real risk to the complainant, then non-disclosure cannot be fraud that vitiates consent. In R v A.E. the complainant was unaware of the video’s existence, nor was the video disclosed to any other persons. The Court of Appeal reasoned that the existence of the video was the fraud that vitiated consent due to the possibility of “serious psychological harm”. By following this reasoning, a judge could find psychological harm when an individual unknowingly has sexual intercourse with a person with HIV- even if the individual had a low viral load and used a condom. This would eliminate the need for scientific evidence and would allow convictions based upon the possibility of psychological distress from HIV non-disclosure regardless of a low viral load and the use of a condom.
In R v. A.E. there was no evidence that the respondent was motivated to distribute the recording. In fact, in a statement to police AE acknowledged that dissemination of the video had the potential to be extremely harmful to the complainant. The complainant had no knowledge of the video and the respondent had no motive to distribute the video. The Court of Appeal’s finding of serious psychological harm is respectfully illogical in these circumstances.
Furthermore, the complainant was protected from unwanted distribution because had the accused distributed the video of their sexual activity it would have been an offence under section 162.1 of the Criminal Code:
162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty
(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.
Definition of intimate image
(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,
(a) in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.
This offence would occur after the consensual sex and therefore is not related to the consent at the time. The test for fraud vitiating consent is not: “Would you have said no had you known the HIV status of your partner even though they used a condom and had a low viral load?” Similarly, the test is not “would you have said no had you known there was surreptitious video recording?”
Secretly videorecording an individual during consensual sex should not be enough to vitiate consent. It makes little sense to hypothesize psychological harm and equate that risk of harm with serious bodily harm in these circumstances. There cannot be psychological harm if the complainant is unaware of the existence of the recording.
The Criminal Code, however, provides for a charge directly on point for this conduct – voyeurism. The definition of voyeurism is as follows:
- 162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if
- (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;
- (b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or
- (c) the observation or recording is done for a sexual purpose.
- (2) In this section, visual recording includes a photographic, film or video recording made by any means.
Surreptitiously recording sexual activity is obviously an abhorrent practice, which is why it is a criminal offence. An individual that has surreptitiously recorded a consensual sexual act that later faces a false allegation of sexual assault will face a dilemma. Should they choose to defend themselves with the secret recording they could be charged with voyeurism at the end of their sexual assault trial. That person is guilty of voyeurism and not sexual assault. Their criminal record ought not reflect a sexual assault when the accurate offence is obvious – it’s voyeurism.
Using the mere possibility or risk of psychological harm to find serious bodily harm creates an unsuitable basis for the concept of fraud vitiating consent. The risk or possibility of psychological harm is an extremely broad and amorphous concept that could technically remove consent in many unforeseen circumstances. The correct charge is voyeurism for surreptitiously recording a consensual sexual act – not a conviction for sexual assault where there was consent to the sexual act.
If courts follow the reasoning that potential psychological harm will vitiate consent to sexual activity then many instances of what has always been considered consensual sex could become criminal sexual assault. Dating and deception are commonplace. Men lie. Women lie. People lie to get what they want – including consensual sex.
People often misrepresent their wealth, career success, relationship goals, and marital status to potential sexual partners. Any of these common lies could cause potential psychological harm. The absurdity of criminalizing such deceitful conduct is apparent. It is our respectful opinion that the Alberta Court of Appeal has gone too far in their decision. If followed it will broaden the circumstances in which fraud could vitiate consent to sexual activity leading to wrongful and inaccurate convictions.
Written By: Andrew Jensen and Adam Weisberg
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