Conditional consent or fraud?

Even so, the court broke in a 5-4 split over the reasons, and whether the jurisprudence in its 2014 ruling in  R v. Hutchison applied. The majority distinguished from that decision and considered the case about conditional consent. 

In the case at hand, Ross Kirkpatrick had met a woman online and when they agreed to have sex, it was contingent upon condom use. While they had intercourse the first time with a condom that night, the second time they did not, which the woman only realized after the fact. At trial, Kirkpatrick had the case dismissed for lack of evidence, while the BC Court of Appeal overturned the decision and ordered a new trial. The Supreme Court of Canada has now upheld that decision.

"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," wrote Justice Sheilah Martin for the majority. "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."

"Since only yes means yes and no means no, it cannot be that 'no, not without a condom' means 'yes, without a condom'," Martin continued. "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."

"This is an internationally significant decision," says Lise Gotell, women's and gender studies professor at the University of Alberta. Her paper on Hutchison was cited by both majority and minority decisions. "Apart from England and Wales where the courts have also approached this question in a similar way, you don't have another jurisdiction now where there is such clarity around this in the criminal law."

Gotell notes that some U.S. states are moving to creating torts of "stealthing" or non-consensual condom removal, and some Australian states are also considering a law reform that would move them closer to the SCC's approach. But nowhere else is there such clarity that condoms form part of the sexual activity in question and is part of the consent.

Gotell says that she is happy with the outcome of the SCC ruling, but would have preferred that the court overturn its decision in Hutchison. 

"[Hutchison] was very bad from the perspective of women complainants," Gotell says. "The practice of non-consensual condom removal is very widespread."

Melanie Webb, a Toronto-based criminal defence lawyer who was not involved in the case, points to the majority's reasoning, differentiating between sex with and without a condom as being a qualitatively different physical act, partly because of direct skin-to-skin contact without one.

"I think that's fairly compelling logic," Webb says. "The Supreme Court was actually asked to revisit or overturn the Hutchinson decision, and the majority specifically declined to do that. Hutchinson was a different case involving condom sabotage."

Like the minority judges, Webb does not view the matter as a "stealthing" case because there has not yet been a finding at trial.

Kerri Froc, a law professor at the University of New Brunswick, and chair of the National Association of Women and the Law's National Steering Committee, calls the majority decision excellent.

Froc was especially pleased by Martin's analysis that condom refusal or removal disproportionately affects women, and that sexual assault is inextricable from notions of power and control.

"In addition to sex inequality, there can also be inequality in sex," Martin wrote. "Requiring a condom is an act of agency, but negotiating its use often takes place in circumstances of inequality. Who has the authority to insist and ultimately decide how their bodies will be touched is at the heart of human dignity and equal sexual agency. Disregarding a complainant's insistence on a condom is both proof and practice of an unequal relationship."

"This recognizes that sexual activity occurs within a context of sex inequality, that 'stealthing' disproportionately impacts women and is exacerbated by intersecting systems of oppression, and that this context affects the interpretation of the 'sexual act in question'," Froc says. "It's a decision steeped in the values underlying the law, which in turn, were influenced by the sex equality rights in the Charter."

According to Webb, there have been concerns since Hutchinson about the no condom use versus a tampered or sabotaged condom. Justice Martin's distinction between the two is logical.

"A tampered condom obviously involves deception—there's no question around that," Webb says. "The minority opinion suggests that an ineffective condom is equivalent to no condom at all. I'm not sure I agree with that. Clearly, some of those circumstances could be accidents, and clearly, there is still room for a defence in many of these situations."

Webb points to the majority analysis that even if you establish the actus rea, the focus will shift to the mens rea, that the accused can still argue an honest and mistaken belief in consent, and that the person was not reckless or wilfully blind, and that this includes situations for accidents.

"I don't necessarily think we're going to see this outpouring of cases where all sorts of people are going to be suddenly charged and wrongfully convicted of sexual assault, because all of these defenses still apply, and certainly a defence lawyer would certainly explore all of that quite vigorously over the course of a trial," Webb says.

Webb says that there is certainly room for criticism of the majority in Hutchinson, but the majority says that Hutchinson is still good law and applies only for cases of deception.

"There is also an argument to be made that the majority opinion is overturning Hutchinson without saying they're overturning it," Webb says. "Overall, I think they came to the right result, but there is still going to be some uncertainty going forward on the applicability or not of Hutchinson. This may still cause some confusion."

Gotell says that the split reasons are worrying from a feminist perspective, particularly given that Justice Michael Moldaver is on the cusp of retirement.

 "The next appointment is going to be very critical from the perspective of feminist advocates and progressive people," Gotell says. "What would have happened if the minority had held sway, if Hutchinson had simply been applied—it would mean that simple cases of condom refusal would fall through the cracks." 

According to Gotell, as many as one-third of young women and one-fifth of men who have sex with men report experiencing non-consensual condom removal.

Gotell adds that the issue is about more than just the physical consequences of condom-less sex. The social science also says that it violates dignity and autonomy and that a condom is also about limiting intimacy.