SELECTED CASE LAW
BRITISH COLUMBIA:
In 2016 BCSC 1565, Mr. D, a serial offender, used Facebook, Plenty of Fish, and Model Mayhem to meet women online and arrange fake modelling auditions. He pretended to represent a modelling agency and offered women a chance at lucrative modelling contracts if they agreed to participate in auditions. These auditions involved an adult component, and D used these meetings to coerce women into having sex with him. Witness credibility and the validity of consent were both key issues at trial.
Section 265(3)(c) of the Criminal Code establishes that there can be no consent to sexual activity when a complainant “does not resist by reason of … fraud.” The Supreme Court of Canada considered this provision in R v Cuerrier, and held that for fraud to vitiate consent, dishonesty must expose a victim to a significant risk of serious bodily harm.[1] D argued at trial that consent to sexual activity was valid because his false claim to be a modelling agent did not expose his victims to serious bodily harm. He also argued that he had an honest but mistaken belief that two of his victims consented.
While the Court ultimately found D guilty of five counts of sexual assault — because women withdrew their consent, and in some cases were unconscious during sexual activity — the Court rejected the Crown’s submission related to fraud. As the Court wrote,
…I have found that there was no consent at all to the sexual activity, but in my view, where a complainant is aware of the identity, in the narrow sense discussed in Hutchinson, of her sexual partner, there is consent as to identity, even in the circumstances arising in this case. In order to establish fraud, it would have been incumbent upon the Crown to lead evidence not only of the deception, but also of a substantial risk of serious harm to the complainant, which it failed to do in this case (emphasis added).[2]
Because there was no evidence proving a “substantial risk of serious harm,” D’s false assertion that he was a modelling agent did not amount to fraud capable of vitiating consent.
Defense counsel stated that while D’s conduct was immoral, it was not criminal because the women consented to sexual activity. The Court disagreed, and convicted D on five out of six counts of sexual assault. D was acquitted of sexually assaulting J, a 28-year-old single mother, because her testimony was found to be unreliable because she had memory problems brought on by drug use. The decision as to sentence in this case has not been located.
[1] 2016 BCSC 1565 at para 35
[2] 2016 BCSC 1565 at para 79.
Criminal Offence(s): Sexual Assault