A recent decision by the Supreme Court of Canada (SCC) has had a subtle but important impact on Canadian sexual assault law, particularly as it pertains to the issues of consent and fraud. The case of R v Kirkpatrick involved a man accused of failing to wear a condom during sex with the complainant against her wishes. On July 29 of this year, all nine SCC judges agreed with the ruling of the British Columbia Court of Appeal (BCCA) ordering a new trial after Mr. Kirkpatrick’s initial acquittal.

Like most sexual assault cases, Kirkpatrick hinged on the issue of consent. More specifically, though, at the Supreme Court level, it dealt with the concept of fraud vitiating consent. Despite the unanimous ruling on the need for a new trial in the matter, on this specific issue, the judges of Canada’s highest court disagreed on a 5-4 basis.

Before jumping into each group’s reasons and what the result of this decision could mean for future sexual assault cases in Canada, a simplified explanation of how consent operates in Canadian sexual assault law may be helpful.

Consent Under Canadian Law

The updated framework for analyzing consent in sexual assault cases was established in the 2014 SCC decision of R v Hutchinson. Hutchinson involved a complainant consenting to sex with a condom with the accused, before which the accused surreptitiously pierced holes in the condom and thereby got the complainant pregnant. The two-step analysis Hutchinson solidified goes as follows:

First, the court must ask itself if there is some evidence that the complainant consented to the sexual activity in question. If not, then there was no consent and that element of the sexual assault actus reus is essentially made out. In those cases, there is no need to proceed to the second step of the analysis.

However, if there is some evidence of consent by the complainant, judges will move to a second step in their analysis where they must consider whether the complainant’s consent was vitiated by fraud. To establish fraud, a complainant must show two things: 1) a deception by the accused, and 2) that they experienced a deprivation or a risk of deprivation due to the accused’s actions. These specifics in regards to fraud had arisen in the previous case of R v Cuerrier, which considered the issue of HIV non-disclosure and its effect on consent, and were further reiterated in Hutchinson. If, at this second step, it is found that there was in fact fraud by the accused vitiating the consent of the complainant (deception and deprivation), the complainant’s apparent consent established at the first step of the analysis is deemed vitiated—in other words, if there was fraud, there was no consent.

The Impact of Kirkpatrick 

Now, back to Kirkpatrick—here, the majority (whose reasons were penned by Justice Sheilah Martin) ruled that consent to sex with a condom is legally distinct from consent to sex without a condom because a condom is a core component of the “sexual activity in question” requirement mentioned above. Thus, according to the majority, if an accused surreptitiously removes a condom and has sex with a complainant who did not want unprotected sex (like in Kirkpatrick), this is a problem to be considered at the first step of the formerly discussed analysis because there was no consent to the sexual activity in question (unprotected sex). In paragraph 2 of her argument, Justice Martin plainly stated: “Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. […] 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.”

The majority made a point of distinguishing Hutchinson by stating that its application is limited to cases where a condom had been sabotaged, and that it is not applicable to cases involving condom use as a pre-established condition of consent, because condom use pertains to the sexual activity in question.

Justice Martin also aptly pointed out that relegating condom use to the issue of fraud vitiating consent (the second step) would unjustly force complainants to establish deprivation/risk of deprivation through the divulgence of “intensely personal, sensitive or stigmatizing information about [their] unwanted pregnancy, abortion, fertility, menopausal status, contraception practices, STIs, assigned sex at birth (where it affects fertility), and possibly mental health” (paragraph 73). This, the majority believes, does not align with the longstanding principle underpinning Canadian sexual assault law that a complainant is entitled to full autonomy in granting or withholding consent to any sexual activity for any reason, and that they should not have to justify the validity of their reasons when they were the one victimized.

The dissent (whose reasons were penned jointly by Justices Suzanne Côté, Russell Brown and Malcolm Rowe) agreed that a new trial was in order in Mr. Kirkpatrick’s case, but found that the analysis in the case at bar and in other cases involving surreptitious condom removal should continue to hinge more so on that second part of the Hutchinson analysis (fraud vitiating consent) and that Hutchinson was fully applicable to this case. They criticized the majority’s narrow reading of Hutchinson, stating that the court’s intention was clearly for the decision to apply broadly to various types of cases involving condom use and potential fraud vitiating consent, including those where a condom was surreptitiously removed before sex, like Kirkpatrick. The distinction between the sabotaged condom in Hutchinson and the absence of the condom in Kirkpatrick, they argued, is one that needlessly complicates established precedent and runs contrary the way courts across the country have been applying Hutchison (using the “fraud vitiating consent” part of the analysis more than the “sexual activity in question” part).

Through concise examination of the Hutchinson decision, the dissent makes a convincing argument that Hutchinson limited the first step of the analysis to issues pertaining specifically to the “essential features of the sexual activity in question”—being the identity of one’s partner, the touching, and the sexual nature of the touching—and that it makes more sense to examine other issues, like birth control and condom use, at the second step of the framework. This does not, of course, make these other issues any less important to the ultimate question of whether or not a complainant consented, but it does maintain consistency and simplicity in the already established criminal law.

Analysis

To some, this might all seem like useless legal semantics, and at least as it pertains to Mr. Kirkpatrick’s case, it somewhat is. This decision did not decide the outcome of Mr. Kirkpatrick’s case—that is what his new trial will be for. By unanimously backing the lower court decision to hold another trial in this matter, the whole court expressed that the issue of the surreptitious removal of the condom contrary to the complainant’s wishes was not adequately examined at the original trial, whether condom use should constitute a core part of the sexual activity in question or an issue that is only to rear its head when the time comes to consider the issue of fraud vitiating consent. Both sets of reasons in Kirkpatrick are unequivocal in expressing that these remain key concerns courts must carefully consider.

Personally, I like the spirit of the majority’s approach. It is bold in trying to build on issues that the Hutchinson framework might have overlooked and ensures that bodily autonomy remains at the center of the conversation around consent. Advocates for victims of sexual violence also welcomed the decision with open arms. Justice Martin’s writing is clear that a complainant’s “yes” does not go one step further than they say it does. However, like the dissent, I worry that Kirkpatrick will cause uncertainty in the criminal law, as it seems parts of Hutchinson were effectively overturned.

I have two main concerns: first of all, according to the majority, Hutchinson’s application is limited to cases involving sabotaged condoms. Yet Justice Martin then claims that in spite of Kirkpatrick, Hutchinson “remains binding authority for what it decided” (paragraph 83). The dissent, for its part, points out (to no direct rebuttal from the majority) that Hutchinson established that the only aspects analyzed at the “sexual activity in question” stage of the analysis are to be the identity of the partner, the touching, and the sexual nature of the touching.

In the future, then, if there is a case of a ruse or trickery of sorts by an accused as it pertains to a sexual act but one that does not involve condom use, what is the correct jurisprudence to follow? Per the dissent, the Hutchinson framework would probably apply to determine whether there was deception and deprivation if there is evidence of consent at the first step. Per the majority, though, there is no framework for such a situation, because they claim that Hutchinson is very limited. Yet unlike Hutchinson, outside of condom use cases, the Kirkpatrick majority articulates no clear framework for figuring out when such an action by an accused comes into play in a court’s attempt to determine if there was consent. There is no certain way to know if these actions constitute part of the sexual activity in question, or simply something to examine when considering the issue of fraud vitiating consent.

My second concern is that Kirkpatrick also begs the question of what else may be deemed so crucial to the issue of consent that it constitutes a part of the sexual activity in question in future cases. Is this an open category, in which other things—such as the use of birth control pills or the making of certain verbal promises meant to induce consent—could become a part of the sexual activity in question? If so, what is the necessary criteria for something to fit into this category? I would have no problem with this becoming the new approach, of course, but the absence of a proposed framework to determine whether something should be part of the sexual activity in question is concerning.

Therefore, while the majority decision is certainly to be lauded for its commitment to keeping bodily autonomy as it pertains to condom use even more at the forefront of future decisions, the uncertainty it introduces in the criminal law is disquieting. At any rate, it will be interesting to see how Mr. Kirkpatrick’s new trial proceeds in light of this bold new SCC decision.

Mélanie Cantin, JURIST’s Chief Correspondent for Canada, is a second-year law student at the University of Ottawa Faculty of Law.