Definition of consent a factor as top court hears arguments in case of B.C. man who didn't wear a condom

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VANCOUVER -

The case of a B.C. man acquitted of sexual assault over his refusal to wear a condom was heard by Canada's top court Wednesday.

The Supreme Court of Canada heard arguments from both sides, and reserved its decision on whether the case should be tried.

Ross McKenzie Kirkpatrick was charged with sexual assault after assuring a woman, whose identity is protected by a publication ban, that he would wear a condom.

A summary of the case says that the complainant insisted, and that Kirkpatrick did wear a condom the first time they had intercourse.

"But on the second occasion, unbeknownst to the complainant, the appellant did not wear a condom," the summary says.

The case went to trial, and Kirkpatrick was acquitted in 2018 of the charge of sexual assault, with the judge stating there was no evidence the complainant had not consented.

The judge at the time cited sections 273.1 and 265(3)(c) of the Criminal Code of Canada, and told the court there was also no evidence to show Kirkpatrick had acted fraudulently, the SCC case summary reads.

Kirkpatrick denies that there was a discussion about condoms at their first meeting.

The case was appealed, and that court allowed for a new trial, a decision that was unanimous, but for different reasons.

Two judges ruled consent can be limited to sexual intercourse on certain conditions, in this case wearing a condom. Thus, the complainant had not consented.

The other felt there was evidence to suggest that her consent was vitiated by fraud, and that Kirkpatrick had been dishonest.

According to the summary of the SCC hearing, a 2014 case known as R. v. Hutchinson was expected to be cited as it was in the original trial. 

That case involved Craig Hutchinson piercing holes in a condom, resulting in the pregnancy of the complainant in the case, who told the court she'd only agreed to have intercourse with a condom. In the Hutchinson case, the Supreme Court ruled the incident constituted fraud.

The cases differ in that Hutchinson admitted the dishonesty.

"In this case, the trial judge concluded there was 'nothing particularly dishonest about (Mr. Kirkpatrick) not putting on a condom prior to sexual intercourse with the complainant" because he "did nothing to hide or deceive the complainant that he did not put on a condom," the decision from the B.C. Court of Appeal summarized of that argument. 

The complainant disagreed, saying she trusted him and that he had rolled over, an action she assumed was tied to putting on a condom. She didn't ask the second time because of that trust.

A major focus of the new trial, one appellate court judge wrote, will be which provision of the Criminal Code criminalizes deception with respect to the use of a condom.