“The complainant testified that she and K met online and then in person to determine if they wanted to have sex with each other. The complainant made clear to K that she would only agree to have sex with him if he wore a condom. Despite this, during their second episode of intercourse, K did not wear a condom. The complainant only realized that K had not been wearing a condom after he ejaculated inside her. Based upon these events, K was charged with sexual assault.
K applied to have the charge dismissed by bringing a no‑evidence motion. He argued that the Crown failed to prove the absence of the complainant’s consent — an essential element in the actus reus of sexual assault — based on the Court’s decision in R. v. Hutchinson, 2014 SCC 19,  1 S.C.R. 346, which sets out a two‑step process for analyzing consent. At the first step, the question is whether the complainant consented to engage in the “sexual activity in question” under s. 273.1(1) of the Criminal Code, which is defined by reference to the specific physical sex act involved. If the complainant consented, or her conduct raises a reasonable doubt about her consent, the second step is to consider whether there are any circumstances under s. 265(3) or s. 273.1(2)(c), including fraud, that vitiate her apparent consent. Fraud under s. 265(3)(c) requires proof of the accused’s dishonesty, which can include non‑disclosure, and a deprivation in the form of significant risk of serious bodily harm from that dishonesty. K argued that the complainant’s agreement to sexual intercourse was enough to establish consent to the sexual activity in question, as she consented to all the physical acts the parties engaged in, and there was no evidence that this consent was tainted by fraud.
The trial judge granted K’s no‑evidence motion and dismissed the sexual assault charge. The Court of Appeal unanimously allowed the Crown’s appeal, set aside the acquittal and ordered a new trial; however, the three judges split on the reasoning as to which Criminal Code provision applied in examining consent: s. 273.1(1) or s. 265(3)(c). K appeals to the Court from the setting aside of his acquittal.”
The SCC (9:0) dismissed the appeal.
Justice Martin wrote as follows (at paras. 1-3; 25; 99-106; 108):
“This appeal raises an important legal question about consent and condom use in the context of an allegation of sexual assault. What analytical framework applies when the complainant agrees to vaginal sexual intercourse only if the accused wears a condom, and he instead chooses not to wear one? All parties and members of this Court agree that his negation of her express limits on how she can be touched engages the criminal law. The question is: should condom use form part of the “sexual activity in question” to which a person may provide voluntary agreement under s. 273.1(1) of the Criminal Code, R.S.C. 1985, c. C-46? Or alternatively, is condom use always irrelevant to the presence or absence of consent under s. 273.1(1), meaning that there is consent but it may be vitiated if it rises to the level of fraud under s. 265(3)(c) of the Criminal Code?
I conclude 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.
Here, 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.
Two alternative pathways are available to decide the legal effect of Mr. Kirkpatrick’s failure to wear a condom on the actus reus of sexual assault. To resolve the correct approach, I begin by providing an overview of the offence of sexual assault, including a review of s. 273.1 and s. 265(3) and the constituent elements of the offence. I present the arguments of the respondent Crown and the appellant and then explain why, when it is a condition of the complainant’s consent, condom use must form part of the “sexual activity in question” under s. 273.1 of the Criminal Code. This is the only interpretation that provides a harmonious reading of the text of the relevant provisions in their entire context and that accords with Parliament’s purpose of promoting personal autonomy and equal sexual agency. Finally, I will explain why Hutchinson does not mandate another result for the specific issue raised in this appeal.
At 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.
The question of whether condom use forms part of the sexual activity in question depends on the facts and whether it is a condition of the complainant’s consent in those particular circumstances. As explained in Ewanchuk (at paras. 29-30), this will require the trier of fact to consider the complainant’s testimony and assess their credibility in light of all the evidence.
Recognizing that condom use may form part of the sexual activity in question not only brings clarity and consistency to the law, it leaves intact the careful limits set out in Cuerrier and Mabior in relation to the non-disclosure of HIV. Nothing in this approach impacts the criminalization of people living with HIV, unless they fail to respect their partner’s condition of condom use.
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 (s. 273.2; Ewanchuk, at paras. 25, 47 and 49; J.A., at para. 42; Barton, at paras. 90-94). The trier of fact will be the best placed to assess in light of the evidence whether a condom was removed in ignorance of the complainant’s conditioned consent, or whether, for example, it accidentally fell off without the accused noticing.
In cases involving condoms, Hutchinson applies where the complainant finds out after the sexual act that the accused was wearing a knowingly sabotaged condom. Hutchinson remains good law and applies only to cases of deception, for example where a condom is used, but rendered ineffective through an act of sabotage and deception. If the complainant finds out during the sexual act that the condom was sabotaged, then they can revoke their subjective consent, the actus reus of sexual assault is made out, and there is no need to consider the fraud analysis.
Recognizing that condom use can be part of the sexual activity in question is not an expansion of s. 273.1 and does not offend the principle of restraint in criminal law. Parliament has stated repeatedly that it is criminally reprehensible conduct to impose an unconsented-to sexual act on an unwilling or unwitting victim. Non-consensual condom refusal or removal is a form of sexual violence that generates harms and undermines the equality, autonomy, and human dignity of complainants. It is not simply “undesirable” behaviour (trial reasons, at para. 30).
There are also no vagueness or certainty concerns if condom use, including non-consensual condom refusal or removal, is seen as part of the sexual activity in question. Asking whether a condom was required and if so, whether one was used has the necessary certainty to prevent over-criminalization. While restraint is an important criminal law principle, it does not override Parliament’s countervailing imperative of enacting sexual assault laws that respect the rights and realities of those subject to such violence. Excluding such physical aspects from the sexual activity in question would leave an avoidable and undesirable gap in the law of sexual assault, where certain violations of a complainant’s physical integrity and equal sexual agency are demoted as less worthy of protection. This runs contrary to the fundamental principle that a complainant’s motives for only agreeing to sex with a condom are irrelevant. The 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.
For these reasons, I would dismiss the appeal and uphold the order of the Court of Appeal for British Columbia setting aside the acquittal and ordering a new trial.”