In a 5-4 decision on Friday, the high court ruled that if a complainant’s partner ignores the condition of using a condom, the intercourse is non-consensual and the complainant’s autonomy and equal sexual agency have been violated.
“When a complainant states, ‘no, not without a condom,’ the consent law tells us, emphatically, that actually means ‘no,’ and cannot be reinterpreted as ‘yes, without a condom,'” the decision states.
A court has ordered a new trial in a British Columbia case in which a complainant told a new sex partner, Ross McKenzie Kirkpatrick, that he would only have sex if he wore a condom.
The fact that Kirkpatrick used a condom the first time they had sex led the complainant to assume he was already wearing one when they had sex the second time, he told the court – but he didn’t, which he said he didn’t realize.  until he ejaculated.
A sexual assault charge against Kirkpatrick was dismissed by a judge who found there was insufficient evidence to proceed with a trial.
Applying the existing two-part test to determine whether consent has been violated in sexual assault cases, the judge found that there was no evidence that the complainant had not consented to the “sexual activity in question,” the intercourse itself, nor was there evidence that the defendant was expressly fraudulent, which would undermine consent.
Although the reasons for its decision are divided, the Supreme Court unanimously agreed with the BC Court of Appeal’s decision that the judge erred in not finding evidence.
The judge had relied on a 2014 Supreme Court decision, R. v.  Hutchinson, which involved the use of deliberately compromised condoms.
In that case, the defendant, Craig Hutchinson, admitted to sabotaging the condoms he used with his girlfriend because he wanted to have a child with her.  The complainant, who did not want to have a child, nevertheless became pregnant and eventually had an abortion.
Hutchinson was charged with aggravated sexual assault, but a judge dismissed the charge and the case went up the appeals chain.
A majority of Supreme Court justices concluded in Hutchinson that consent to “the sexual activity in question” does not include “conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases.”
They said such cases should instead be decided using the second part of the test, which asks whether there has been dishonesty on the part of the accused and whether the complainant has suffered a substantial risk of bodily harm.  On that basis, they ordered a new trial.
The decision has long been criticized by feminist and legal groups who say it’s a matter of common sense that sex with a condom is different from sex without a condom.
The attorneys general of Alberta and Ontario joined advocacy groups in making this point as intervenors in the Supreme Court, stressing that the effects of refusing to use a condom versus using a compromised condom are the same.
For them, Friday’s majority, authored by Justice Sheilah Martin, is a partial victory.
“We’re very, very pleased with the outcome of the decision,” said Lise Gotell, a sexual consent scholar at the University of Alberta and former board chair of the Women’s Legal Education and Action Fund.
But Gotell said the court missed an opportunity to completely overturn the “wrongly decided” Hutchinson decision.
He said it would have avoided a situation where cases involving tampered condoms are now more difficult to prosecute than cases involving refusal to use a condom.
“We believe that condom sabotage is a form of non-consensual condom removal that should be treated the same way,” Gotell said.
Instead, Martin writes that the Hutchinson decision was limited to its specific factual context and would still apply in cases where a complainant discovers after a sexual act that the accused was wearing a tampered condom.
The minority opinion, with which Chief Justice Richard Wagner concurred, says the Hutchinson decision remains the appropriate lens through which to view cases involving condom use, so that the presence of a condom does not materially change the type of sexual act involved country.
The minority judges would have found some evidence that the complainant consented to the sexual activity in question, meaning that she had consented to the type of sex the two were having.
But they also said there was some evidence of dishonesty by omission on Kirkpatrick’s part, so the judge should not grant a no-evidence motion dismissing the charge.
Leaving the test to whether or not fraud has occurred is problematic, the majority decision says, because for fraud to have occurred, a court must find that there was dishonesty and that there was also a “substantial risk of bodily harm.”
“The harms of the nonconsensual refusal or removal of a condom go beyond the substantial risk of serious bodily harm and are far broader than the risk of pregnancy and STDs,” Martin’s decision states.
Removing condom use out of the equation of consent itself would also have perpetuated a myth that “real rape” is defined only by physical violence, Martin writes, and would have left certain types of people and certain types of sex outlawed—like as people who cannot get pregnant or sexual acts that will not spread infection.
This report by The Canadian Press was first published on July 29, 2022.