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CRIMINAL CODE OFFENCES - Sexual assault - Consent

Tuesday, June 16, 2020 @ 9:18 AM  


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Appeal by the Crown from trial judgment allowing the respondent’s no-evidence motion and acquitting him of sexual assault. The complainant told the respondent that she insisted on the use of condoms during sexual intercourse. On their first sexual encounter, the respondent used a condom. Later that night, the respondent had sex again with the complainant but did not use a condom without the complainant’s knowledge. She testified she had not consented to intercourse without a condom and would not have done so if asked. The trial judge found there was no evidence to support the contention that the complainant did not consent to the sexual activity because no condom was used. He also found that there was no evidence to support the Crown’s theory that the respondent engaged in fraud, deceiving the complainant into thinking that he was using a condom. The trial judge concluded there was nothing particularly dishonest about the respondent 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.

HELD: Appeal allowed. New trial ordered. The trial judge erred in giving effect to the no-evidence motion. Sexual intercourse with a condom was not the same sexual activity as sexual intercourse without a condom. There was a considerable body of evidence that the complainant did not consent to the sexual activity that took place. There was also some evidence that there was no consent to the sexual activity in question by reason of fraud. The trial judge erred in law in his characterization of what was required in law to show dishonesty in requiring overt dishonesty. The respondent admitted he was not wearing a condom, did not tell the complainant that he was not wearing a condom, and there was evidence he knew this was a condition of the complainant’s consent. There was ample evidence that she would not consent to sexual intercourse without a condom and, on her evidence, the respondent was aware of this, yet he failed to disclose that he was not wearing one. This was sufficient evidence of dishonesty to overcome a no-evidence motion on this issue.

R. v. Kirkpatrick, [2020] B.C.J. No. 791, British Columbia Court of Appeal, M.E. Saunders, H. Groberman and E.A. Bennett JJ.A., May 13, 2020. Digest No. TLD-June152020004