The Supreme Court of Canada is about to hear an appeal in the case of Craig Jaret Hutchinson, a Nova Scotia man convicted of sexual assault for poking holes in his girlfriend's condoms in a bid to salvage his relationship with the woman.
Hutchinson's case has been dragging through the Nova Scotia court system for more than six years, including two trials and two appeals.
In the summer of 2006, Hutchinson thought he could save his flagging relationship by getting his girlfriend pregnant. He surreptitiously poked holes in her condoms, and later urged her to start taking pregnancy tests. The second test came back positive.
It was only after the positive pregnancy test that Hutchinson admitted to the sabotage. Things did not turn out as he'd hoped — his Halifax-area girlfriend broke off the relationship, called police and had an abortion. A publication ban protects her identity.
"It was a bit of a toxic relationship," Luke Craggs, Hutchinson's lawyer, said in an interview this week.
"He lost his sense and he did some things which he regretted, which he isn't pretending aren't bad. But things which he has said and has said throughout just are not criminal."
The judge at Hutchinson's first trial agreed, calling his actions "dastardly," but acquitting him. The Crown appealed that decision and Hutchinson was convicted in December 2011 at his second trial.
That conviction was upheld on appeal, but the Nova Scotia Court of Appeal split on its decision, with one justice who dissented. That gave Hutchinson an automatic right to appeal, leading to this week's appearance before the Supreme Court.
Consent is the issue, says Crown
Jim Gumpert, the Crown prosecutor, said the issue for the Supreme Court is consent.
"What's important in this case is the issue of whether or not the very fact of poking the holes surreptitiously, using the condoms in sexual intercourse unbeknownst to the victim, if that is sufficient to remove consent," Gumpert said.
"The argument that the Crown had, that I had in the case was clearly yes. The majority of the Court of Appeal agreed with that."
Hutchinson's case has national significance. HIV and AIDS groups have been granted intervenor status.
Craggs said the AIDS groups are worried that if Hutchinson's conviction stands, it could affect the broader issue of consent and risk — and determining whether the victim was exposed to a significant risk of bodily harm.
Pregnancy and abortion do not meet the legal test of "significant risk" and AIDS groups are concerned that could also affect people who are HIV-positive, said Craggs.
"Something like … mutual masturbation where there's no risk of transmission, but the person on the other side of it might say, 'Well, I wouldn't have consented to that if I had known.'
"Even though they were never put in any danger, their preference not to engage in sexual activity of any type — whether there's a risk of transmission or not, with a person who's HIV-positive — that would then become a crime under the interpretation from the Nova Scotia Court of Appeal," he said.
The Crown disputes that interpretation.
"The purpose of our appeal is not to deal with HIV status. That's not the facts in our case," Gumpert said.
"My response in the Supreme Court of Canada is the HIV issues would have to be dealt with in another case where those facts are clearly before the court."
'Sheer emotional drain'
Gumpert said the two concerns are different.
"There's a distinction between someone who says or doesn't disclose their HIV status and someone who surreptitiously changes around the physical characteristics of the sexual activity in which they engage," he said.
"We're saying the HIV status thing is a grey area that should be dealt with in another case."
Hutchinson is free on bail pending the outcome of this appeal. At his trial, he was sentenced to 18 months in jail. He also gave a DNA sample and his name was placed on the national sex offender registry.
"It makes it incredibly difficult for him to get on with his life," Craggs said.
"If he wants to get a job, there's the whole issue of him being a convicted sex offender, which stands in his way. He has difficulty committing to employment long term because he's out on bail right now, but there's the looming prospect of losing the appeal and having to go back to jail.
"Of course, there's just the sheer emotional drain on himself, his family, he has a daughter. It takes a huge toll."
The Supreme Court is expected to reserve its decision after Friday's hearing.