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The Complex Legacy Of R. V. Cuerrier: Hiv Nondisclosure Prosecutions And Their Impact On Sexual Assault Law, Isabel Grant
The Complex Legacy Of R. V. Cuerrier: Hiv Nondisclosure Prosecutions And Their Impact On Sexual Assault Law, Isabel Grant
All Faculty Publications
This article examines the impact of the Supreme Court of Canada decision in R. v. Cuerrier from two vantage points. First, the article examines the impact of the decision on HIV nondisclosure prosecutions. Second, it examines the damage done by Cuerrier to sexual assault law outside of the HIV context. The article argues that Cuerrier has both overcriminalized people living with HIV and distorted the law of sexual assault. Through Cuerrier, and subsequent cases, the Supreme Court of Canada has unduly limited the concept of consent and its voluntariness requirement, and distorted the concept of fraud such that deceptions around …
Does 'No, Not Without A Condom' Mean 'Yes, Even Without A Condom'?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant
Does 'No, Not Without A Condom' Mean 'Yes, Even Without A Condom'?: The Fallout From R V Hutchinson, Lise Gotell, Isabel Grant
All Faculty Publications
In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully …