R v Kirkpatrick: Can Ignorance Amount to Deceit When It Involves a Failure to Wear a Condom?
When assessing the scope of consent for sexual activity, the courts have held that consent is required at the beginning of every sexual incident. This means that consent given on one occasion is not a blanket approval for all subsequent sexual acts between the same parties. An individual is also able to limit their consent. This could mean imposing a condition, such as the use of a condom. The leading case is R v Hutchinson, 2014 SCC 19 [Hutchinson], which is discussed at length in R v Kirkpatrick, 2020 BCCA 136 [Kirkpatrick].
Hutchinson was an unusual case. The complainant consented to having sexual intercourse with the accused on the condition that he wear a condom. The accused, unbeknownst to the complainant, wore a condom that was rendered defective when he poked holes in it. The complainant became pregnant, and the accused was charged with aggravated sexual assault. The Supreme Court (“SCC”) unanimously upheld the conviction. However, it split on the analysis, with the majority finding that while the complainant had consented to the sexual activity, the accused’s fraud vitiated her consent. On the other hand, the minority found that the complainant had not consented to the sexual activity at all. This SCC judgment has resulted in lower courts applying different tests in sexual assault cases involving the use of condoms.
Kirkpatrick was recently granted leave to the SCC. It is hoped that clarification will be provided as to which interpretation of consent governs when a person limits their consent to sexual intercourse by insisting that a condom be used. It is also hoped that the Court will clarify the confusing case law that Hutchinson has left in its wake and uphold Justice Groberman’s approach to consent in Kirkpatrick.
Before delving into the facts, it is important to note that the accused succeeded on a no-evidence motion, which means the prosecutor had no evidence of certain elements of the crime that was charged. Therefore, the accused was not required to present a defence to the charge of sexual assault (Kirkpatrick, para 4). The retelling of the facts in this piece replicate the complainant’s account of events and do not reflect any final judicial determination.
The complainant and the accused met online and subsequently had two meetings in person. The complainant stated that she had spoken to the accused on both occasions about the use of ‘safe sex practices’ and told the accused that “she insisted on the use of condoms during sexual intercourse” (Kirkpatrick, para 5). The complainant testified that the accused agreed at the time. However, the accused later denied that the discussion had taken place at their first meeting (Kirkpatrick, para 67). On the night in question, the accused and complainant participated in sexual intercourse. The complainant insisted on using a condom. After they were finished, she asked to see the condom in order to verify that protection had been used (Kirkpatrick, para 7). That same night, after both the accused and complainant had fallen asleep, the complainant awoke, noting that the accused was sexually aroused. She initially pushed him away. The accused briefly turned to his side table, from which he had previously retrieved a condom for the first sexual interaction and proceeded to engage in sexual intercourse with the complainant. Having seen the accused turn towards the side table, the complainant believed that he was wearing a condom. They did not discuss whether the accused was in fact wearing protection. It was only after the accused ejaculated that the complainant realized the accused had not worn a condom. In response to the complainant asking the accused why he failed to wear protection, he stated that he had been too excited to do so (Kirkpatrick, para 11).
The Crown presented two alternative theories: that the sexual activity went beyond what was consented to, or that consent was vitiated by fraud. In response to the first theory, the trial judge found that there was no evidence to support the contention that the complainant did not consent. In coming to this conclusion, the trial judge relied on the Hutchinson majority’s definition of consent (Kirkpatrick, para 12). The trial judge also rejected the Crown’s second theory, holding that the accused did not deceive the complainant. In making this conclusion, the trial judge relied on evidence that the accused had asked the complainant to guide his penis into her vagina, inferring that he had not attempted to hide the fact that he was not wearing a condom (Kirkpatrick, para 13). The trial judge was unable to find any evidence to establish the level of dishonesty required to convict. He acquitted the accused.
The exercise of personal autonomy is an integral principle underlying the definition of consent in Canada, especially with respect to sexual activity. The leading case of R v Ewanchuk, 1999 1 SCR 330 [Ewanchuk] illustrates this principle. In that case, the Court held: “The trier of fact may only come to one of two conclusions: the complainant consented or did not… No defence of implied consent exists in Canadian law” (Ewanchuk, para 31).
The Criminal Code, RSC 1985, c C-46, outlines the meaning of “consent” with respect to cases involving sexual activity:
273.1(1) Subject to subsection (2) and s. 265(3), consent means… the voluntary agreement of the complainant to engage in the sexual activity in question.
Subsection 265(3)(c) provides that “no consent is obtained whether the complainant submits or does not resist by reason of … fraud
The majority judgment in Hutchinson, written by Chief Justice McLachlin and Justice Cromwell, with Justices Rothstein and Wagner concurring, determined that the meaning of “sexual activity in question” does not include the use of a condom. They established that condom use is a “collateral condition” that does not pertain to the initial inquiry of whether the complainant voluntary agreed to the sexual act. In other words, a complainant consents to vaginal intercourse, but not how the intercourse is carried out (Hutchinson, para 64).
The SCC adopted this approach on the basis that deception is specifically dealt with by s. 265(3)(c). Therefore, Parliament could not have intended it to form a portion of the analysis under s. 273.1(1) (Hutchinson, para 26). The majority also took into account the legislative history, expressing concern that such an expansive definition of “sexual activity in question” would catch innocent mistakes, such as the use of a poor-quality condom and the breaking of a condom during the sexual act.
Issues on Appeal
The issues on appeal were whether there was some evidence that the complainant did not consent to the sexual activity in question, and if not, whether there was some evidence that consent was vitiated by fraud (Kirkpatrick, para 72). The three judges—Justice Saunders, Justice Groberman, and Justice Bennett—all agreed that the appeal should be allowed and ordered a new trial. However, Justices Groberman and Bennett provided different reasons, with Justice Saunders breaking the tie.
At the BCCA
Justice Groberman asked an important question after reviewing Hutchinson:
Did the majority, in describing “conditions or qualities of the physical act” as including such matters as ‘birth control measures of the presence of sexually transmitted diseases’ mean to exclude important physical aspects of the sexual activity (such as wearing of a condom) from the definition of the ‘sexual activity’ in question? (Kirkpatrick, para 26)
He began his analysis by answering the above question. Justice Groberman described such a limitation on the definition as “perverse”, as it prevents an individual from limiting their consent (Kirkpatrick, paras 27-28). He justified his interpretation by stating: “Just as sexual touching over top of clothing is obviously a different physical act from sexual touching beneath clothing, it seems to me that penile-vaginal penetration with a condom is a different physical act from such a penetration without one” (Kirkpatrick, para 30).
Justice Groberman found, based on his determination that sexual intercourse with and without a condom are distinct acts, that the complainant did not consent. He concluded that the trial judge erred in accepting the no-evidence motion, since “there was a considerable body of evidence that the complainant did not consent to the sexual activity that took place”, since she had insisted on the use of a condom (Kirkpatrick, para 37).
Justice Groberman also found that the accused’s conduct had not risen to the level of deception required for fraud (Kirkpatrick, para 40). He explained: “The fact that he had, at an earlier time, agreed to use a condom is not evidence of fraud. A failure to keep a promise is not, in and of itself, fraudulent — if it were, every breach of contract would amount to fraud” (Kirkpatrick, para 41). He concluded that the trial judge did not err in finding no evidence of fraud. Justice Groberman set aside the acquittal and ordered a new trial, since there was evidence that the accused continued to engage in sexual intercourse without a condom, even though he knew the complainant only consented on the condition that he wear one.
Justice Bennett concurred with Justice Groberman’s decision to order a new trial. However, she concluded that he failed to apply Hutchinson correctly. She also held that the distinction between consent to sexual activity with a condom and consent to sexual activity without one should be analyzed under the fraud provision, s. 265(3)(c) (Kirkpatrick, para 45). Justice Bennett held that the facts of this case and Hutchinson were highly similar, referring to the Hutchinson majority’s analysis that the sexual activity is distinct from the method of protection used (Kirkpatrick, para 47). Justice Bennett rejected Justice Groberman’s interpretation of Hutchinson and held that it was not open to the BCCA to reinterpret what the majority held in Hutchinson. Accordingly, she found that the trial judge was correct in holding there was no evidence that the complainant did not agree to the sexual activity in question.
On the question of fraud, she applied the test in R v Mabior, 2012 SCC 47 [Mabior], stating that the failure to disclose a condom’s absence could amount to dishonesty. Justice Bennett held that fraud can be established if the accused admits he was not wearing a condom, knowing the condition attached to the complainant’s consent (Kirkpatrick, para 114). She found that the trial judge erred in using the approach expressly rejected in Mabior, by looking for a clear misrepresentation or lie on the part of the accused. Justice Bennett stated the current test: whether there was some evidence or risk of deprivation (Kirkpatrick, para 118). The evidence that the complainant underwent preventative treatment for HIV infection following the incident and that the treatment caused serious side effects was evidence of deprivation. Justice Bennett allowed the appeal on the basis that the consent was vitiated by fraud. She ordered a new trial based on her conclusion that the trial judge erred in law by failing to apply the correct test for fraud (Kirkpatrick, para 121).
Justice Saunders agreed with Justice Groberman’s interpretation of Hutchinson. She stated that in the event that Justice Groberman’s understanding of Hutchinson was mistaken, she would agree with Justice Bennett that there was enough evidence to establish fraud (Kirkpatrick, para 124).
At the SCC
Justice Groberman’s interpretation of Hutchinson is consistent with the SCC’s definition of consent in Ewanchuck—that silence and ambiguity do not constitute consent. In the similar case of R v Rivera, 2019 ONSC 3918, the Ontario Superior Court also pushed back against the majority judgment in Hutchinson. In Rivera, the accused ignored the complainant’s request to wear a condom. The complainant testified that when the accused penetrated her, all she could do was freeze and proceeded to lay there limp (Rivera, para 7). The trial judge found that intercourse without a condom was different than sexual activity with a condom, following the minority judgment in Hutchinson. If the court had followed Justice Bennett’s approach and looked for an act amounting to fraud, it would most likely have found that the accused’s actions failed to meet the high threshold affirmed in Hutchinson. The threshold test for fraud includes a requirement of deprivation, which is defined in s. 265(3)(c) of the Criminal Code as a “significant risk of serious bodily harm.” This would have deprived the complainant in Rivera of protection, as she did not suffer a risk of serious bodily harm.
As Justice Groberman stated, the interpretation of sexual intercourse with and without a condom as being two distinct acts is imperative for protection of personal autonomy and the public interest. It is hoped that the SCC, in hearing this appeal, will take into consideration the interpretations provided by both Justice Bennett and Groberman, clarify the requirements of consent, and explain the elements of fraud for the purpose of vitiating consent.