In R. v. Kirkpatrick, 2022 SCC 33, July 29, 2022, the accused was charged with the offence of sexual assault. The Supreme Court indicated that “the complainant gave evidence that she had communicated to the appellant that her consent to sex was contingent on condom use. Despite the clear establishment of her physical boundaries, the appellant disregarded her wishes and did not wear a condom. This was evidence of a lack of subjective consent by the complainant — an element of the actus reus of sexual assault. As a result, the trial judge erred in granting the appellant’s no evidence motion. Accordingly, I would dismiss the appeal and uphold the order of the Court of Appeal for British Columbia setting aside the acquittal and remitting the matter to the Provincial Court of British Columbia for a new trial” (at paragraph 3).
The Supreme Court indicated that “when consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom. Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom. This approach respects the provisions of the Criminal Code, this Court’s consistent jurisprudence on consent and sexual assault and Parliament’s intent to protect the sexual autonomy and human dignity of all persons in Canada. Since only yes means yes and no means no, it cannot be that ‘no, not without a condom’ means ‘yes, without a condom’. If a complainant’s partner ignores their stipulation, the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated” (at paragraph 2).
The Supreme Court indicated that the appeal raised two issues (at paragraphs 23 and 24):
First, when a complainant makes their consent to sexual intercourse conditional on their partner wearing a condom, does failure to wear a condom result in “no voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1) of the Criminal Code, or should failure to wear a condom be analyzed under the fraud provision in s. 265(3)(c)?
Second, what is required to establish fraud, and was there some evidence of dishonesty by the appellant capable of constituting fraud vitiating consent under s. 265(3)(c) of the Criminal Code?
Interpreting the “Sexual Activity in Question” in Section 273.1(1):
The Supreme Court indicated that “[t]he legal meaning given to the ‘sexual activity in question’ cannot be narrowly drawn or fixed for all cases. Like the consent of which it is part, it is tied to context and cannot be assessed in the abstract; it relates to particular behaviours and actions (Hutchinson, at para. 57; Barton, at para. 88). Much will depend on the facts and circumstances of the individual case. In a very real way, it will be defined by the evidence and the complainant’s allegations. What touching does the complainant say was unlawful? Which acts were beyond the boundaries of any consent given? The sexual activity in question will emerge from a comparison of what actually happened and what, if anything, was agreed to. This is bound to change in every case” (at paragraph 40).
The Court held that “condom use may form part of the sexual activity in question because sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom… All principles of statutory interpretation compel the conclusion that sex with a condom is a different physical activity than sex without a condom. It is the only meaning of the ‘sexual activity in question’ that reads s. 273.1 as a whole and harmoniously with this Court’s jurisprudence on subjective and affirmative consent. In addition, it fulfills Parliament’s objective of giving effect to the equality and dignity-affirming aims underlying the sexual assault prohibitions; responds to the context and harms of non-consensual condom refusal or removal; and respects the restraint principle in criminal law. While vitiation by fraud may still arise in other cases, it does not apply when condom use is a condition of consent” (at paragraphs 43 and 45).
The Supreme Court summarized its conclusion by indicating that “[a]t the actus reus stage of sexual assault, placing a condition of condom use on consent defines the sexual activity voluntarily agreed to under s. 273.1. The ‘sexual activity’ to which the complainant must consent may include the use of condoms… Where condom use is a condition of the complainant’s consent to the sexual activity in question, it will form part of the ‘sexual activity in question’ and the consent analysis under s. 273.1. If the actus reus is established, the focus will shift to the mens rea. If the accused is mistaken and has not been reckless or willfully blind to the complainant’s consent, and has taken reasonable steps to ascertain this consent, they may be able to put forward a defence at the mens rea stage of the analysis” (at paragraphs 99 and 102).
The Court concluded that “[t]he complainant’s evidence in this case was clear: she would not consent to having sex with the appellant without a condom, but the appellant nevertheless chose to engage in sexual intercourse without one. Therefore, there was some evidence that the complainant did not subjectively consent to the sexual activity in question. The trial judge erred in concluding otherwise…Given my conclusion on the first issue, it is not necessary to consider the second issue of whether there was evidence capable of meeting the requirements to establish fraud under s. 265(3)(c)” [at paragraphs 106 and 107].