Reasons of The Court
The Supreme Court ruled that Cuerrier's failure to disclose his HIV status constituted fraud. The women's consent to unprotected sexual activity, therefore, was not validly given as it was obtained through fraudulent means.
The court did, however, rule that an HIV-positive person who practices safer sex does not necessarily have a legal responsibility to disclose his or her status.
The judges were unanimous in ruling that failure to disclose HIV status constituted fraud, although they differed on how to implement the ruling in law. The majority decision, authored by Justice Peter Cory, set out three criteria which should be proven in a prosecution on these grounds:
- the accused committed an act that a reasonable person would see as dishonest,
- there was a harm, or a risk of harm, to the complainant as a result of that dishonesty, and
- the complainant would not have consented but for the dishonesty by the accused.
In a minority opinion, Justice Beverley McLachlin favoured the specific addition of a clause regarding "deceit about sexually transmitted disease that induces consent" in the legal definition of fraud. In another minority opinion, Justice Claire L'Heureux-Dubé argued that the first and third criteria set out by Cory should suffice for a conviction; she did not favour a burden of proof whether there was an actual risk of harm.
Read more about this topic: R. V. Cuerrier
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