This Week at the SCC: Stealthing as Sexual Assault

Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 6 minutes.

Latest Cases

1. R. v. Kirkpatrick is out this Friday. At issue is the proper approach to dealing with stealthing sexual assault cases (aka non-consensual condom removal).
2. Last Thursday, the SCC clarified the offence of unlawful confinement in R. v. Sundman, 2022 SCC 31.
3. Last Friday, in a 5:4 split, the SCC in R. v. Lafrance, 2022 SCC 32 endorsed a generous approach s. 10(b) Charter right to counsel.

Head over to Fantasy Courts to lock in your prediction for this week’s decision or read more about the cases below.

Stealthing as Sexual Assault

Note: There’s a publication ban in the case.

What Happened?

Before trial: The appellant, Kirkpatrick, was charged with sexual assault. The complainant told the appellant that she insisted on condom use during sex. They had sex twice. The first time the appellant wore a condom. The second time, unbeknownst to the complainant, the appellant did not wear a condom. The complainant testified that she had not consented to intercourse without a condom, and her evidence was that she would not have done so if asked.

At trial: Following a successful no evidence motion, the appellant was acquitted of sexual assault. Relying on R. v. Hutchinson, 2014 SCC 19, the trial judge found that under s. 273.1 of the Criminal Code, there was no evidence that the complainant had not consented to the sexual activity in question. Turning to s. 265(3)(c), the trial judge concluded that there was also no evidence to show that the appellant had acted fraudulently.

At the Court of Appeal: The Court of Appeal unanimously allowed the Crown’s appeal, set aside the acquittal, and remitted the matter for a new trial. On the issue of consent, Groberman J.A. (with Saunders J.A. concurring) held that the majority decision of the Court in Hutchinson allowed a person to limit their consent on the condition that their partner wears a condom. He held that sex with a condom is a different physical act than without. The complainant had therefore not consented to the sexual activity in question under s. 273.1. Bennett J.A. in concurring reasons was instead of the view that the majority in Hutchinson clearly stated that the use of a condom was to be determined under s. 265(3) – whether consent was vitiated by fraud. She therefore agreed with the trial judge that there was no evidence to suggest that the complainant had not voluntarily agreed to the sexual activity in question. On the issue of fraud, Bennett J.A. (Saunders J.A. concurring in the alternative) ruled that the complainant’s consent was vitiated by fraud as the appellant had been dishonest when he did not disclose that he had not worn a condom and that there had been deprivation. Groberman J.A. held that the trial judge did not err in holding that there was no evidence to support that the appellant had acted fraudulently.

What Was Argued at the SCC?

Appellant: Kirkpatrick argued that consent to one type of sexual activity is not consent to a different sexual activity. However, sex with or without a condom is not a different sexual activity for the purpose of s. 273.1. Instead, deceptions about conditions or qualities of the sexual act may vitiate consent, but that is dealt with under the fraud provision at s. 265(3).

Respondent: The Crown argued that sex with and without a condom are fundamentally different forms of touching and thus are physically different types of “sexual activity” under s. 273.1. A complainant who consents to sex on the condition that her partner wears a condom does not consent to sex without a condom. Where her sexual partner ignores her request for a condom, the sex is non-consensual.

What Else Should You Know Before Making a Prediction?

In Hutchinson, the Court was unanimous in the result, but Abella, Moldaver and Karakatsanis JJ. wrote concurring reasons. They found that just because a condom is a form of birth control, does not mean that it’s not part of the sexual activity. The only judge from the majority in Hutchinson left on the Court is Wagner C.J. I’m leaning towards appeal dismissed with Moldaver and Karakatsanis JJ.’s concurring judgment in Hutchison essentially becoming the majority reasons here.

Latest SCC Decisions

On July 21, 2022, the SCC released its decision in R. v. Sundman, 2022 SCC 31. The Court unanimously dismissed Sundman’s appeal.

Held: Unlawful confinement doesn’t always mean being physically restrained and the focus should be on whether it was part of a continuous sequence of events.

Key Points:

• Even if the victim was not physically restrained, he continued to be coercively restrained through violence, fear, and intimidation. He was deprived of his liberty and was not free to move about according to his inclination and desire.
• The victim was murdered while unlawfully confined. Two distinct criminal acts (confinement & murder) were part of a continuous sequence of events forming a single transaction. The appellant therefore was guilty of first and not second-degree murder.
• 96% correctly predicted that the appeal would be dismissed.

On July 22, 2022, the SCC released R. v. Lafrance, 2022 SCC 32. The Court, in a 5:4 split, dismissed the Crown’s appeal.

Held: The Respondent’s s. 10(b) Charter right to counsel was violated and his confession is therefore not admissible.

Key Points:

• Police detention does not always require physical restraint by the state. A detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply and that they are not free to leave.
• The Respondent was effectively detained when police raided his house and therefore police were required to inform him of his s. 10(b) right to counsel.
• When he was finally arrested and informed of his s. 10(b) right to counsel, police should have given him a further opportunity to consult counsel when it was apparent he did not understand his rights and how to exercise them.
• The Respondent’s youth, Indigenous background and level of sophistication were all relevant factors.
• 41% correctly predicted that the appeal would be dismissed. Moldaver J., who authored the decision in Dussault and was heard at the same time as the Lafrance appeal, was in dissent.

-Tom Slade

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