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| Lawrence David |
Consent is an omnipresent concept in Anglo-Canadian law. This emphasis testifies to the importance of human dignity and individual autonomy, and of protecting human agency in the face of potential risk. Where the law requires consent, it must be informed, wilful and unequivocal. To be valid, it cannot be the product of coercion, duress or fraud.
Fraud, in this context, relates to any material information that could objectively affect the individual’s ability or willingness to provide valid consent. Where consent is found to have been vitiated, its legal effect threatens the validity of any transaction conducted in reliance thereof.
The same principles find application in the Canadian criminal law governing sexual offences. Section 265(3)(c) deems any consent provided by a participant in sexual activity to be invalid “where the complaint submits or does not resist by reason of… fraud.” In this context, submission and the absence of resistance are largely understood as synonymous with wilful acquiescence.
A key example of how fraud operates in the law of sexual assault is found in the law governing HIV non-disclosure. In R. v. Mabior [2012] S.C.J. No. 47, the Supreme Court of Canada held that “an HIV-positive person who engages in sexual relations without disclosing [their] condition commits aggravated sexual assault.” The rationale: HIV is a serious and potentially fatal health condition. Sexual autonomy and human dignity require that individuals be able to choose with whom they engage in sexual activity in full appreciation of attendant risks.
A conviction is far from automatic. A condition precedent is that the defendant have actual knowledge of their HIV diagnosis. They must also have deliberately intended to withhold that fact in order to procure consent to sexual relations. A person who does not know they are infected with HIV cannot be convicted of sexual assault — whether aggravated or otherwise — even if their partner becomes infected (R. v. Williams [2003] S.C.J. No. 41).
Direct analogies may be drawn to COVID-19. COVID-19 is a serious, potentially life-threatening illness. In this time of global pandemic, quarantine and social distancing, a prospective sexual partner’s COVID-19 status is an objectively material factor that would affect the decision to participate in sexual activity.
If the prospective partner has been diagnosed with COVID-19 and deliberately withholds that crucial fact in seeking to obtain consent, a breach of the criminal law may have occurred. The consent could likely be shown to have been obtained by fraud — that is, in a manner that the Criminal Code deems to be legally invalid.
A breach may occur without actual transmission or infection. Wilful exposure to an objectively serious risk of physical and psychological harm is sufficient. It is, in fact, this element of intentionality and wilfulness that constitutes the mens rea of the offence and ensures that the latter is consistent with s. 7 of the Canadian Charter of Rights and Freedoms. Criminal convictions are reserved for morally blameworthy conduct committed by morally blameworthy individuals.
Criminal liability for wilful transmission of COVID-19 may actually be more easily satisfied than a conviction based on HIV non-disclosure. In Mabior, the Supreme Court expressly held that a person infected with HIV need not divulge their status to a prospective sexual partner where two conditions are met. The first is that the individual have a low viral load. The second is the requirement of prophylactic protection.
Note, however, that the same is not necessarily true for COVID-19. COVID-19 is transmissible without sexual penetration and regardless of whether a condom is worn. Sexual activity, in the criminal law, does not require penetration or for “seed to be emitted.”
COVID-19 is a respiratory infection transmitted by way of droplets of saliva and other human fluid. The critical areas of exposure are a person’s mouth, nose and eyes. Airborne transmission is another possibility. Pre-existing medical conditions may also make a person more susceptible to infection and attendant complications.
Recall, however, that a criminal conviction is not possible for transmission of COVID-19 absent a sexual partner’s deliberate withholding of their medical diagnosis as a means of obtaining consent. Only then will fraud vitiate the latter’s legality.
Overall, it is, in theory, possible for a conviction of aggravated sexual assault to be founded on the knowing and wilful transmission of COVID-19. Appropriate punishment may, in these circumstances, be debatable. Victims of sexual assault may, however, be assured that the criminal law does not stand silent even in a time of pandemic.
Lawrence David is part-time professor of law, criminal law and procedure, University of Ottawa, Faculty of Law — common law section. He can be contacted at lawrencedavidlegal@gmail.com.
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