Ross McKenzie Kirkpatrick Appellant v. Her Majesty The Queen, 2022 SCC 33

SUPREME COURT OF CANADA Citation: R. v.

Kirkpatrick, 2022 SCC 33 Appeal Heard: November 3, 2021 Judgment Rendered: July 29, 2022 Docket: 39287 Between: Ross McKenzie Kirkpatrick Appellant and Her Majesty The Queen Respondent - and - Attorney General of Ontario, Attorney General of Alberta, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, Barbra Schlifer Commemorative Clinic, West Coast Legal Education and Action Fund Association, Women’s Legal Education and Action Fund Inc. and Criminal Lawyers’ Association (Ontario) Interveners Coram: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

Reasons for Judgment: (paras. 1 to 108) Martin J. (Moldaver, Karakatsanis, Kasirer and Jamal JJ. concurring) Joint Concurring Reasons: (paras. 109 to 310 ) Côté, Brown and Rowe JJ. (Wagner C.J. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

Ross McKenzie Kirkpatrick Appellant v. Her Majesty The Queen Respondent and Attorney General of Ontario, Attorney General of Alberta, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, Barbra Schlifer Commemorative Clinic, West Coast Legal Education and Action Fund Association, Women’s Legal Education and Action Fund Inc. and Criminal Lawyers’ Association (Ontario) Interveners Indexed as: R. v. Kirkpatrick 2022 SCC 33 File No.: 39287. 2021: November 3; 2022: July 29.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ. on appeal from the court of appeal for british columbia Criminal law — Sexual assault — Consent — Complainant consenting to sexual intercourse on condition that accused wear condom — Complainant realizing after intercourse that accused failed to wear condom — Whether accused’s failure to wear condom when complainant’s consent conditional on its use results in there being no voluntary agreement of complainant to engage in sexual activity in question — Alternatively, whether such failure can constitute fraud vitiating complainant’s consent — Criminal Code, R.S.C. 1985, c.

C-46, ss. 265(3) (c), 273.1(1) . 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 , [2014] 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. Held : The appeal should be dismissed. Per Moldaver, Karakatsanis, Martin , Kasirer and Jamal JJ.: Condom use, when it is a condition of the complainant’s consent, forms 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. Conditioning agreement to sexual touching on condom use goes to the heart of the specific

physical activity in question and the existence or non-existence of subjective consent, and there is no need to resort to the doctrine of fraud and its stringent legal requirements. Hutchinson remains binding authority for what it decided — that cases involving condom sabotage and deceit should be analyzed under the fraud provision rather than as part of the sexual activity in question — but is distinguishable in situations such as in the case at bar where the accused refuses to wear a condom and the complainant’s consent has been conditioned on its use.

In the instant case, the complainant gave evidence that she had communicated to K that her consent to sex was contingent on condom use and K did not wear a condom. This was evidence of a lack of subjective consent by the complainant to the sexual activity in question — an element of the actus reus of sexual assault. As a result, the trial judge erred in granting K’s no evidence motion. The starting point and primary provision for determining whether there is consent to sexual activity for sexual assault offences is s. 273.1.

The key term “sexual activity in question” in s. 273.1(1) exists within a composite phrase that requires “voluntary agreement . . . to engage in the sexual activity in question”. Parliament’s intent as demonstrated by the text, context, and purpose of the sexual assault provisions must be sought and interpreted consistently with the Court’s jurisprudence on consent and harmoniously with all parts of s. 273.1 and the overall legislative scheme.

The legal meaning given to the “sexual activity in question” cannot be narrowly drawn or fixed for all cases — it is tied to context and cannot be assessed in the abstract, relates to particular behaviours and actions, and will depend on the facts and circumstances of the individual case. It will be defined by the evidence and the complainant’s allegations, and will emerge from a comparison of what actually happened and what, if anything, was agreed to. In the instant case, the specific sexual assault alleged and the sexual activity in question is vaginal sexual intercourse without a condom.

In determining whether the complainant’s agreement to sexual intercourse with a condom means she also agreed to sexual intercourse without a condom, the starting point is the proposition from Hutchinson that the “sexual activity in question” the complainant must agree to is the “specific physical sex act”. The focus should therefore be on the specific sex acts, defined by reference to the physical acts involved.

Applying Hutchinson ’s focus on the “specific physical sex act”, condom use may form part of the “sexual activity in question” under s. 273.1(1) because sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom. The physical difference is that intercourse without a condom involves direct skin-to-skin contact, while intercourse with a condom involves indirect contact.

Logically and legally, direct and unmediated sexual touching is a different physical act than indirect and mediated contact; whether a condom is required is basic to the physical act. All principles of statutory

interpretation compel the conclusion that sex with a condom is a different physical activity than sex without a condom for the purposes of the “sexual activity in question”. It is the only

interpretation that reads s. 273.1 as a whole and harmoniously with the Court’s jurisprudence on subjective and affirmative consent. When interpreting Parliament’s definition of consent expressed in s. 273.1 , subs. (1) must be read together with subs. (2), which specifies situations where no consent would be obtained in relation to sexual assault offences.

Section 273.1(2)(

d) and (

e) in particular underscore how the complainant’s words and actions are directly relevant to whether or not there was consent to the sexual activity in question. Based on the complainant’s evidence in the case at bar, she expressed, by words and conduct, a lack of agreement to engage in sexual intercourse without a condom.

Section 273.1(2)(

d) expressly reinforces that the clear rejection of a specific activity must be respected if consent is to have any meaning. Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it. Recognizing that condom use may form part of the sexual activity in question affirms that individuals have the right to determine who touches their bodies and how, is the only way to respect the need for a complainant’s affirmative and subjective consent to each and every sexual act, and situates condom use at the definitional core of consent, where it belongs.

The complainant’s “no” to sexual intercourse without a condom cannot be ignored under either s. 273.1(1) or (2) because today, not only does no mean no, but only yes means yes. Further, voluntary agreement to sex with a condom cannot be taken to imply consent to sex without one as consent cannot be implied from the circumstances or the relationship between the accused and the complainant.

In addition, recognizing that condom use may be part of the sexual activity in question fulfills Parliament’s objective of giving effect to the equality and dignity-affirming aims underlying the sexual assault prohibitions, responds to the context and harms of non-consensual condom refusal or removal, and respects the restraint principle in criminal law. Non-consensual condom refusal or removal is a form of sexual violence generating physical and psychological harms. The power dynamic it rests on is exacerbated among vulnerable women and among people with diverse gender identities and sex workers.

Preventing a complainant from limiting consent to circumstances where a condom is used erodes the right to refuse or limit consent to specific sexual acts, leaving the law of Canada seriously out of touch with reality, and dysfunctional in terms of its protection of sexual autonomy. There are no vagueness or certainty concerns if condom use 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. While vitiation of consent by fraud under s. 265(3) (

c) may still arise in other cases, it does not apply when condom use is a condition of consent. Instead of asking whether the complainant subjectively wanted the touching to take place, fraud shifts the focus to how the accused behaved and asks whether he attempted to, or succeeded in, deceiving the complainant about his lack of condom use. The requirement to prove deception and a deprivation misdirects the inquiry and creates gaps which leave many outside the law’s protection in relation to sexual assault.

Such an approach should not be adopted where the complainant has not agreed to sex without a condom because: (1) requiring proof of a deprivation fails to account for how, under the law of consent, all persons are able to decide to consent or not based on whatever grounds are personally meaningful to them; (2) the harms of non-consensual condom refusal or removal go beyond a significant risk of serious bodily harm and are much wider than the risk of pregnancy and STIs; (3) the harm requirement for fraud means that certain people and certain types of sex would not come within the law’s protection; and (4) proving a significant risk of serious bodily harm will likely entail a patronizing assessment of whether the harm the complainant experienced was significant enough to vitiate a consent that, in their mind, was never given.

Hutchinson does not govern a case like the present one where consent turns on condom use and no condom was worn, and should therefore be distinguished. Hutchinson simply held that cases involving condom sabotage and deceit should be analyzed under the fraud provision rather than as part of the sexual activity in question in s. 273.1. Hutchinson was chiefly concerned with the delineation of deception under the criminal law and did not establish the sweeping proposition that all cases involving a condom fall outside s. 273.1 and can only be addressed when the conditions of fraud are established.

The decision in Hutchinson is limited by its

factual context and the majority’s repeated references to the effectiveness of the condom, its sabotaged state and the accused’s deception. In cases involving condoms, Hutchinson applies where the complainant finds out after the sexual act that the accused was wearing a knowingly sabotaged condom. 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.

Per Wagner C.J. and Côté , Brown and Rowe JJ.: There is agreement with the majority that the appeal should be dismissed. However, there is disagreement that Hutchinson is distinguishable. Hutchinson squarely applies to the case at bar. It held, categorically, that condom use is not part of “the sexual activity in question” contemplated in s. 273.1(1) of the Criminal Code . When a person agrees to have sex on the condition that their partner wear a condom, but that condition is circumvented in any way, the sole pathway to criminal liability is the fraud vitiating consent analysis under s. 265(3) (c).

Applying Hutchinson to the present case, there is some evidence that the complainant consented to the sexual activity in question, but a new trial is required to determine whether her apparent consent was vitiated by fraud. The case at bar is indistinguishable from Hutchinson for several reasons. First, the binding ratio decidendi of all the decisions of the Court, as an apex court, is necessarily wider than the majority acknowledges. When the question of law is one of statutory

interpretation, the ratio of the binding precedent at issue must be understood in the context of the Court’s role: to provide a clear and uniformly applicable

interpretation of how a statutory provision is to be understood and applied by lower courts across Canada. Second, the

interpretation of Hutchinson advanced by the majority is contradicted by a plain reading of the decision, by the Hutchinson minority opinion, and by Hutchinson ’s treatment by courts across the country. Third, the distinction the majority draws between Hutchinson and the case at bar is both incoherent and illogical. Distinguishing Hutchinson on the basis of no condom versus sabotaged condoms obscures the bright line of criminality established in Hutchinson .

By arguing that the Hutchinson majority referred only to effective condom use, the majority in the instant case introduces needless uncertainty into the criminal law. It follows from the foregoing that the majority’s attempt to distinguish Hutchinson , in substance, effects an overturning of that precedent. Hutchinson conclusively determined the meaning of “the sexual activity in question” under s. 273.1(1) as excluding all forms of condom use, not only condom sabotage. As Hutchinson cannot be distinguished, it must either be applied or overturned.

To assess whether Hutchinson can be overturned, it is necessary to examine the Court’s horizontal stare decisis jurisprudence and articulate a framework for assessing whether the Court can overturn a prior precedent. According to the foundational doctrine of s tare decisis — to stand by previous decisions and not to disturb settled matters — judges are to apply authoritative precedents and have like matters be decided by like. There are two forms of stare decisis : vertical and horizontal. Vertical stare decisis requires lower courts to follow decisions of higher courts, with limited exceptions.

Horizontal stare decisis , which binds courts of coordinate jurisdiction in a similar manner, operates differently at each level of court. As the apex court, the Court’s decisions often require the elaboration of general principles that can unify large areas of the law and provide meaningful guidance to the legal community and the general public. Such guidance is given effect in a variety of circumstances and for an indefinite period. Eventually, these frameworks may need to be revisited to ensure that they remain workable and responsive to social realities.

The framework for horizontal stare decisis at the Court must take account of its institutional role and how that role relates to the rationale for stare decisis . First, stare decisis promotes legal certainty and stability, allowing people to plan and manage their affairs. It serves to take the capricious element out of law and to give stability to a society. Second, it promotes the rule of law, such that people are subject to similar rules. Third, stare decisis promotes the legitimate and efficient exercise of judicial authority.

Res judicata prevents re-litigation of specific cases and stare decisis guards against this systemically, by preventing re-litigation of settled law. Both doctrines promote judicial efficiency. Stare decisis also upholds the institutional legitimacy of courts, which hinges on public confidence that judges decide cases on a principled basis, rather than based on their own views. Stare decisis is foundational in that it requires that judges give effect to settled legal principles and depart from them only where a proper basis is shown.

The criticisms that stare decisis is inherently conservative and that courts only adhere to it when the impugned precedent accords with their personal preference arise from the inconsistent application of stare decisis . Both criticisms are answered by its proper application.

Given the disparate nature of the Court’s horizontal stare decisis jurisprudence and given the importance of stare decisis , it is necessary to set out a clear and coherent framework: the Court can only overturn its own precedents if that precedent (1) was rendered per incuriam , that is, in ignorance or forgetfulness of the existence of a binding authority or relevant statute; (2) is unworkable, or (3) has had its foundation eroded by significant societal or legal change.

To overturn a precedent on the ground that it was rendered per incuriam , a litigant must show that the Court failed to consider a binding authority or relevant statute and that this failure affected the judgment. This will be a rare basis to overturn a decision because the Court has the benefit of party and intervener submissions, lower court decisions on the issue, and rigorous internal processes, and because the standard to establish that a decision was decided per incuriam is high.

An unworkable precedent is one that is unduly complex or difficult to apply in practice and that undermines at least one of the purposes that stare decisis is intended to promote (legal certainty, the rule of law, judicial efficiency). Parties seeking to overturn precedent on this basis need to demonstrate that a precedent undermines the goals of stare decisis . It is not enough for litigants to assert baldly that a precedent has been applied in an uneven and unpredictable manner, creates uncertainty, or is doctrinally incoherent.

Where fundamental changes undermine the rationale of a precedent, this eroded precedent can be overturned by the Court. This can occur in two ways, through: (1) societal change (e.g., social, economic, or technological change in Canadian society), or (2) legal change, such as constitutional amendments, or, incrementally, when subsequent jurisprudence attenuates a precedent.

With respect to societal change, the Court can overturn its decisions when fundamental changes to societal conditions undermine the decision’s rationale, because the changes either render the concerns underlying the precedent moot or inconsistent with contemporary societal norms. Those seeking to overturn precedent based on societal change must demonstrate such change. As for legal change, the need to revisit precedents that conflict with the Constitution is clear but the point at which subsequent decisions have attenuated a precedent sufficiently so as to warrant overturning it is more difficult to define.

The jurisprudence reveals a common theme: the precedent relies on principles or gives effect to purposes inconsistent with those underlying the Court’s subsequent decisions.

All per incuriam decisions should be overturned. But an unworkable or eroded precedent may be upheld if overturning thedecision would result in unforeseeable change or expand criminal liability. It should no longer be argued that a precedent should beoverturned because it is (1) subject to judicial or academic criticism, (2) diverges from foreign jurisprudence, (3) is wrong in the eyes ofsome, (4) is a new or old precedent, or (5) was decided by a narrow majority. This framework for horizontal stare decisis is intended toapply to all statutory

interpretation, common law, and constitutional precedents of the Court. However, differences exist between thesetypes of precedents. In order for the Court to revisit a precedent based on statutory

interpretation, it must be shown that the Courtmisconstrued the legislature’s intent. As the meaning of a statute is fixed at the time of enactment, parties cannot argue that socialchange has altered the meaning of a particular provision. If the passage of time renders the statute inconsistent with contemporary socialreality, it is the legislature that must remedy the statute’s deficiencies. Applying this horizontal stare decisis framework, Hutchinson meets none of the criteria for overturning precedent.

First, itwas not rendered per incuriam as it cannot be demonstrated that the Hutchinson panel ignored binding precedent, much less that theresult would have been different had it considered an allegedly overlooked authority. Further, the failure to consider binding precedentwould be grounds for overturning Hutchinson, not a basis for reading its ratio so narrowly that it may be distinguished. Second,Hutchinson is not unworkable. Far from creating uncertainty, the raison d’être of Hutchinson was to provide a bright line rule forinterpreting the “sexual activity in question” under s. 273.1(1).

The Hutchinson rule consigns all forms of deception involvingcontraception, including condom use or non-use, to the fraud analysis under s. 265(3)(c). Post-Hutchinson jurisprudence discloses nodifficulty applying it. At most, it may be said that a tiny fraction of reviewing judges simply disagree with Hutchinson. Likewise, theacademic criticism levied against Hutchinson suggests that it was wrongly decided but the existence of criticism alone is insufficient tojustify departing from a precedent. Third, no foundational erosion has occurred with respect to Hutchinson.

Any societal change that mayhave occurred since Hutchinson cannot change Parliament’s legislative intent as authoritatively interpreted by the Hutchinson Court. Thestatutory meaning of “the sexual activity in question” set out in Hutchinson reflects Parliament’s intent at the time of enactment. If thepassage of time has rendered this statutory provision inconsistent with contemporary social reality, it is for the legislature to further studyand to remedy any alleged deficiency.

Finally, the Crown has not pointed to any legal change that could warrant overturning Hutchinson:no constitutional or jurisprudential developments post-Hutchinson that would attenuate its precedential value are mentioned. The Court’srecent sexual assault jurisprudence does not purport to displace Hutchinson’s clear and categorical

interpretation of the “sexual activity inquestion” under s. 273.1(1) as excluding condom use. Even if Hutchinson were unworkable or if its precedential foundation had eroded, there are at least two compelling reasonsto uphold it. First, overturning Hutchinson would raise concerns regarding the retrospective expansion of criminal liability. Second,overturning Hutchinson may lead to unforeseeable consequences. Suddenly re-orienting the law to expand the scope of consent would bea major legal change engaging potentially wide-reaching policy issues. Hutchinson therefore governs the case at bar, such that thetwo-step fraud vitiating consent analysis under s. 265(3)(

c) is engaged, rather than the consent analysis under s. 273.1(1). At the first step of the Hutchinson framework, there is some evidence that the complainant voluntarily agreed to the sexualactivity in question. However, at the second step, there is also some evidence that the complainant’s apparent consent may have beenvitiated by fraud. On the low threshold of a no-evidence motion, there was at least some evidence of dishonesty by omission and risk ofdeprivation through the risk of pregnancy. Accordingly, a new trial is required. Cases Cited By Martin J. Distinguished: R. v.

Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; referred to: R. v. Arcuri, 2001 SCC 54, [2001] 2S.C.R. 828; United States of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067; R. v. Monteleone, (SCC), [1987] 2 S.C.R. 154; R. v. Charemski, (SCC), [1998] 1 S.C.R. 679; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R.368; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. J.A., 2011SCC 28, [2011] 2 S.C.R. 440; R. v. G.F., 2021 SCC 20; R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371; R. v. Mabior, 2012SCC 47, [2012] 2 S.C.R. 584; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v.

Park, (SCC), [1995] 2 S.C.R. 836;R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Olotu, 2017 SCC 11, [2017] 1 S.C.R. 168, aff’g 2016 SKCA 84, 338 C.C.C. (3d)321; R. v. Poirier, 2014 ABCA 59; R. v. Flaviano, 2014 SCC 14, [2014] 1 S.C.R. 270, aff’g 2013 ABCA 219, 309 C.C.C. (3d) 163;1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3S.C.R. 360; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; R. v. D.A.I.,2012 SCC 5, [2012] 1 S.C.R. 149; R. v.

Chartrand, (SCC), [1994] 2 S.C.R. 864; R. v. Gladue, (SCC),[1999] 1 S.C.R. 688; R. v. Lupi, 2019 ONSC 3713; R. v. Rivera, 2019 ONSC 3918; R. v. Kraft, 2021 ONSC 1970; R. v. Hutchinson,2011 NSSC 361, 311 N.S.R. (2d) 1; R. v. Hutchinson, 2013 NSCA 1, 325 N.S.R. (2d) 95; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R.609. By Côté, Brown and Rowe JJ. Applied: R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; considered: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R.609; R. v. Bernard, (SCC), [1988] 2 S.C.R. 833; Minister of Indian Affairs and Northern Development v.

Ranville, (SCC), [1982] 2 S.C.R. 518; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R.653; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, (SCC), [1997] 1 S.C.R. 1092; Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438; R. v. B. (K.G.), (SCC), [1993] 1 S.C.R. 740; Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, [2017] 2 S.C.R. 317; R. v. Kapp, 2008 SCC 41,[2008] 2 S.C.R. 483; Vetrovec v. The Queen, (SCC), [1982] 1 S.C.R. 811; Tolofson v. Jensen, (SCC),[1994] 3 S.C.R. 1022; McLean v.

Pettigrew, (SCC), [1945] S.C.R. 62; Brooks v. Canada Safeway Ltd., (SCC), [1989] 1 S.C.R. 1219; Bliss v. Attorney General of Canada, (SCC), [1979] 1 S.C.R. 183; United States v. Burns,2001 SCC 7, [2001] 1 S.C.R. 283; Bowhey v. Theakston, (SCC), [1951] S.C.R. 679; Deacon v. The King, (SCC), [1947] S.C.R. 531; R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768; Clark v. Canadian National Railway Co., (SCC), [1988] 2 S.C.R. 680; Ordon Estate v. Grail, (SCC), [1998] 3 S.C.R. 437; R. v. Mabior, 2012 SCC47, [2012] 2 S.C.R. 584; referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v.

R.P., 2012 SCC 22, [2012] 1

S.C.R. 746; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23; Salomon v.Matte-Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Quinn v. Leathem, [1901] A.C. 495; Edmonton (City) v. Edmonton East (Capilano) Shopping CentresLtd., 2016 SCC 47, [2016] 2 S.C.R. 293; R. v. Arcand, 2010 ABCA 363, 264 C.C.C. (3d) 134; Osborne v. Rowlett (1880), 13 Ch. D. 774;Delta Acceptance Corporation Ltd. v. Redman (1966), (ON CA), 55 D.L.R. (2d) 481; TCF Ventures Corp. v.

CambieMalone’s Corp., 2017 BCCA 129, 95 B.C.L.R. (5th) 346; R. v. A.E., 2021 ABCA 172, 466 D.L.R. (4th) 226; R. v. Brar, 2021 ABCA146, 23 Alta. L.R. (7th) 1; R. v. P.D.C., 2021 ONCA 134, 401 C.C.C. (3d) 406; R. v. Nauya, 2021 NUCA 1; R. v. G. (N.), 2020 ONCA494, 152 O.R. (3d) 24; R. v. Capewell, 2020 BCCA 82, 386 C.C.C. (3d) 192; R. v. Kwon, 2020 SKCA 56, 386 C.C.C. (3d) 553; R. v.Percy, 2020 NSCA 11, 61 C.R. (7th) 7; Charest v. R., 2019 QCCA 1401; R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237; P. (P.) v.D. (D.), 2017 ONCA 180, 409 D.L.R. (4th) 691; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v.

Goldfinch, 2019 SCC 38, [2019]3 S.C.R. 3; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Ahmad, 2020 SCC 11; R. v. C.P., 2021 SCC 19; Beamish v. Beamish(1861), 9 H.L.C. 274; Stuart v. Bank of Montreal (1909), (SCC), 41 S.C.R. 516; R. v. Salituro, (SCC),[1991] 3 S.C.R. 654; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Practice Statement (Judicial Precedent),[1966] 1 W.L.R. 1234; Reference re The Farm Products Marketing Act, (SCC), [1957] S.C.R. 198; Canada v. Craig,2012 SCC 43, [2012] 2 S.C.R. 489; Ontario (Attorney General) v.

Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Planned Parenthood ofSoutheastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Willers v. Joyce (No. 2), [2016] UKSC 44, [2018] A.C. 843; Queensland v.Commonwealth, [1977] 139 C.L.R. 585; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada(Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; Re Hansard Spruce Mills Ltd., (BC SC), [1954] 4 D.L.R. 590; R. v. Sullivan, 2022 SCC 19; R. v. Neves, 2005 MBCA 112, 201 Man. R. (2d) 44; DavidPolowin Real Estate Ltd. v.

Dominion of Canada General Insurance Co. (2005), (ON CA), 76 O.R. (3d) 161; Tan v.Canada (Attorney General), 2018 FCA 186, [2019] 2 F.C.R. 648; Toronto Standard Condominium Corporation No. 1628 v. TorontoStandard Condominium Corporation, 2020 ONCA 612, 454 D.L.R. (4th) 126; Watkins v. Olafson, (SCC), [1989] 2S.C.R. 750; Roe v. Wade, 410 U.S. 113 (1973); Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609; R. v.Chan, 2018 ONSC 3849, 365 C.C.C. (3d) 376; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; R. v. Fleming, 2010 ONSC 8022;R. v. Dunn (1999), (ON SC), 28 C.R. (5th) 295; R. v.

Jensen, [2000] O.J. No. 4870 (QL), 2000 CarswellOnt 6489(WL); R. v. Decaire, [1998] O.J. No. 6339 (QL); R. v. Cedeno, 2005 ONCJ 91, 195 C.C.C. (3d) 468; Dickerson v. United States, 530U.S. 428 (2000); Miranda v. Arizona, 384 U.S. 436 (1966); Kosmopoulos v. Constitution Insurance Co., (SCC), [1987]1 S.C.R. 2; Central Alberta Dairy Pool v. Alberta (Human Rights Commission), (SCC), [1990] 2 S.C.R. 489; BritishColumbia (Public Service Employee Relations Commission) v. BCGSEU, (SCC), [1999] 3 S.C.R. 3; Nova Scotia(Workers’ Compensation Board) v.

Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Health Services and Support — Facilities SubsectorBargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; R. v. Chaulk, (SCC), [1990] 3 S.C.R. 1303;Police Authority for Huddersfield v. Watson, [1947] 1 K.B. 842; R. v. C. (T.L.), (SCC), [1994] 2 S.C.R. 1012; R. v.George, (SCC), [1966] S.C.R. 267; Walker v. Bank of Montreal, 2017 SKCA 42, [2017] 12 W.W.R. 130; ArevaResources Canada Inc. v. Saskatchewan (Minister of Energy and Resources), 2013 SKCA 79, 417 Sask. R. 182; RogersCommunications Inc. v.

Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283; R. v.Morin, (SCC), [1992] 1 S.C.R. 771; R. v. Stilwell, 2014 ONCA 563, 313 C.C.C. (3d) 257; De Souza v. Cobden, [1891] 1Q.B. 687; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496; R. v. Tutton, (SCC), [1989] 1 S.C.R. 1392; R. v. Hynes, 2001SCC 82, [2001] 3 S.C.R. 623; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967; R. v. Robinson, (SCC), [1996] 1 S.C.R.683; MacAskill v. The King, (SCC), [1931] S.C.R. 330; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1S.C.R. 295; Robertson and Rosetanni v.

The Queen, (SCC), [1963] S.C.R. 651; R. v. Therens, (SCC),[1985] 1 S.C.R. 613; Chromiak v. The Queen, (SCC), [1980] 1 S.C.R. 471; R. v. Hawkins, (SCC),[1996] 3 S.C.R. 1043; R. v. Hodgson, (SCC), [1998] 2 S.C.R. 449; Friedmann Equity Developments Inc. v. Final NoteLtd., 2000 SCC 34, [2000] 1 S.C.R. 842; R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639; R. v. D.L.W., 2016 SCC 22, [2016] 1S.C.R. 402; Frey v. Fedoruk, (SCC), [1950] S.C.R. 517; Pearson v. Callahan, 555 U.S. 223 (2009); Bow Valley Husky(Bermuda) Ltd. v. Saint John Shipbuilding Ltd., (SCC), [1997] 3 S.C.R. 1210; Kimble v.

Marvel Entertainment, LLC,576 U.S. 446 (2015); R. v. Knuller (Publishing, Printing and Promotions) Ltd., [1973] A.C. 435; R. v. Cunningham, [1982] A.C. 566; R.v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; Ross v. The Queen (1895), 1895 CanLII113 (SCC), 25 S.C.R. 564; Neuman v. M.N.R., (SCC), [1998] 1 S.C.R. 770; Alberta v. Hutterian Brethren of WilsonColony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555; Mounted Police Association of Ontariov. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; R. v.

Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; McLean v. BritishColumbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R.698; Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669; Reference re Code of CivilProcedure (Que.), art. 35, 2021 SCC 27; Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32; British Columbia(Attorney General) v. Canada (Attorney General), (SCC), [1994] 2 S.C.R. 41; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R.236; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330; R. v.

J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371; R. v. G.F., 2021 SCC 20; Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828. Statutes and Regulations Cited Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38,

preamble, s. 1. Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(g), (i), 15. Constitution Act, 1982. Criminal Code, R.S.C. 1985, c. C-46, ss. 265(1)(a), (3), 271, 273.1 [S.C. 2018, c. 29, s. 19(1), (2)], 273.2. Authors Cited Ahmad, Marwa, et al. “‘You Do It without Their Knowledge.’ Assessing Knowledge and Perception of Stealthing among CollegeStudents” (2020), 17:10 Int. J. Environ. Res. Public Health 3527 (online: https://www.mdpi.com/1660-4601/17/10/3527/htm; archivedversion: https://scc-csc.ca/cso-dce/2022SCC-CSC33_1_eng.pdf).

Arvay, Joseph J., Sheila M. Tucker and Alison M. Latimer. “ Stare Decisis and Constitutional Supremacy: Will Our Charter Past Become an Obstacle to Our Charter Future?” (2012), 58 S.C.L.R. (2d) 61 . Ashley, Florence. “Nuancing Feminist Perspectives on the Voluntary Intoxication Defence” (2020), 43:5 Man. L.J. 65. Benedet, Janine. “Judicial Misconduct in the Sexual Assault Trial” (2019), 52 U.B.C. L. Rev. 1. Bernstein, Elizabeth. “Militarized Humanitarianism Meets Carceral Feminism: The Politics of Sex, Rights, and Freedom in Contemporary Antitrafficking Campaigns” (2010), 36 Signs 45. Bingham, Tom.

The Rule of Law . Toronto: Allen Lane, 2010. Black’s Law Dictionary , 11th ed., by Bryan A. Garner. St. Paul, Minn.: Thomson Reuters, 2019, “ stare decisis et non quieta movere ”. Boadle, Allira, Catherine Gierer and Simone Buzwell. “Young Women Subjected to Nonconsensual Condom Removal: Prevalence, Risk Factors, and Sexual Self-Perceptions” (2021), 27 Violence Against Women 1696. Brodsky, Alexandra. “‘Rape-Adjacent’: Imagining Legal Responses to Nonconsensual Condom Removal” (2017), 32 Colum. J. Gender & L. 183. Brown, Donald J. M., with the assistance of David Fairlie. Civil Appeals .

Toronto: Thomson Reuters, 2022 (loose-leaf updated May 2022, release 2 ). Bumiller, Kristin. In an Abusive State: How Neoliberalism Appropriated the Feminist Movement against Sexual Violence . Durham, N.C.: Duke University Press, 2008. Canada. House of Commons. House of Commons Debates , vol. VIII, 3rd Sess., 34th Parl., April 8, 1992, pp. 9505-7. Capers, I. Bennett. “The Unintentional Rapist” (2010), 87 Wash. L. Rev. 1345. Craig, Elaine. “Personal Stare Decisis , HIV Non-Disclosure, and the Decision in Mabior ” (2015), 53 Alta. L. Rev. 207.

Czechowski, Konrad, et al. “That’s not what was originally agreed to”: Perceptions, outcomes, and legal contextualization of non-consensual condom removal in a Canadian sample , in PLoS ONE, 14(7), July 10, 2019 (online: https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0219297; archived version: https://scc-csc.ca/cso-dce/2022SCC- CSC33_2_eng.pdf ). Daly, Paul. “Introduction”, in Paul Daly, ed., Apex Courts and the Common Law . Toronto: University of Toronto Press, 2019, 3. Douglas, William O. “Stare Decisis” (1949), 49 Colum. L. Rev. 735. Duxbury, Neil. The Nature and Authority of Precedent .

New York: Cambridge University Press, 2008. Gibbens, R. D. “Appellate Review of Findings of Fact” (1991-92), 13 Advocates’ Q. 445. Gotell, Lise, and Isabel Grant. “Non-Consensual Condom Removal in Canadian Law Before and After R. v. Hutchinson ” (2021), 44 Dal. L.J. 439. Gruber, Aya. “A ‘Neo-Feminist’ Assessment of Rape and Domestic Violence Law Reform” (2012), 15 J. Gender Race & Just. 583. Gruber, Aya. “Rape, Feminism, and the War on Crime” (2009), 84 Wash. L. Rev. 581. Healy, Thomas. “Stare Decisis As A Constitutional Requirement” (2001), 104 W. Va. L. Rev. 43.

Johnston, Meagan. “Sisterhood Will Get Ya: Anti-rape Activism and the Criminal Justice System”, in Elizabeth A. Sheehy, ed., Sexual Assault in Canada: Law, Legal Practice and Women’s Activism . Ottawa: University of Ottawa Press, 2012, 267. Khan, Ummni. “Homosexuality and Prostitution: A Tale of Two Deviancies” (2020), 70 U.T.L.J. 283. Laskin, Bora. “The Role and Functions of Final Appellate Courts: The Supreme Court of Canada” (1975), 53 Can. Bar Rev. 469. Latimer, Rosie L., et al.

Non-consensual condom removal, reported by patients at a sexual health clinic in Melbourne, Australia , in PLoS ONE, 13(12), December 26, 2018 (online: https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0209779; archived version: https://scc-csc.ca/cso-dce/2022SCC-CSC33_3_eng.pdf ). Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 5th ed. Toronto: LexisNexis, 2018. Lévesque, Sylvie, and Catherine Rousseau. “Young Women’s Acknowledgment of Reproductive Coercion: A Qualitative Analysis” (2021), 36 J. of Interpers.

Violence NP8200 (online: https://journals.sagepub.com/doi/pdf/10.1177/0886260519842169 ). Martin, Dianne L. “Retribution Revisited: A Reconsideration of Feminist Criminal Law Reform Strategies” (1998), 36 Osgoode Hall L.J. 151. McInnes, John, and Christine Boyle. “Judging Sexual Assault Law Against a Standard of Equality” (1995), 29 U.B.C. L. Rev. 341.

Millar, Hayli, and Tamara O’Doherty. “Racialized, Gendered, and Sensationalized: An examination of Canadian anti-trafficking laws, their enforcement, and their (re)presentation” (2020), 35 C.J.L.S. 23. Mykhalovskiy, Eric, and Glenn Betteridge. “Who? What? Where? When? And with What Consequences? An Analysis of Criminal Cases of HIV Non-disclosure in Canada” (2012), 27 C.J.L.S. 31. Parkes, Debra. “Precedent Revisited: Carter v Canada (AG) and the Contemporary Practice of Precedent” (2016), 10:1 McGill J.L. & Health S123. Parkes, Debra. “Precedent Unbound?

Contemporary Approaches to Precedent in Canada” (2006), 32 Man. L.J. 135. Phillips, Dana. “Let’s Talk About Sexual Assault: Survivor Stories and the Law in the Jian Ghomeshi Media Discourse” (2017), 54 Osgoode Hall L.J. 1133. Randall, Melanie. “Sexual Assault Law, Credibility, and ‘Ideal Victims’: Consent, Resistance, and Victim Blaming” (2010), 22 C.J.W.L. 397. Rowe, Malcolm, and Leanna Katz. “A Practical Guide to Stare Decisis ” (2020), 41 Windsor Rev. Legal Soc. Issue s 1. Sharpe, Robert J. Good Judgment: Making Judicial Decisions . Toronto: University of Toronto Press, 2018. Stuart, Don.

Annotation to United States of America v. Sriskandarajah (2013), 97 C.R. (6th) 268 . Sullivan, Ruth. Statutory

Interpretation , 3rd ed. Toronto: Irwin Law, 2016. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. United States. Congressional Research Service. “The Supreme Court’s Overruling of Constitutional Precedent”, by Brandon J. Murrill, September 24, 2018. Williams, Glanville, and A. T. H. Smith. Glanville Williams: Learning the Law , 17th ed. London: Sweet & Maxwell, 2020. APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Groberman and Bennett JJ.A.), 2020 BCCA 136 , 388 C.C.C. (3d) 60, 63 C.R. (7th) 338, [2020] B.C.J.

No. 791 (QL), 2020 CarswellBC 1201 (WL), setting aside the acquittal entered by Solomon Prov. Ct. J., 2018 BCPC 415 , [2018] B.C.J. No. 7258 (QL), 2018 CarswellBC 4109 (WL), and ordering a new trial. Appeal dismissed. Philip W. Cote , for the appellant. John R. W. Caldwell and Janet A. M Dickie , for the respondent. Dena Bonnet and Rebecca De Filippis , for the intervener the Attorney General of Ontario. Christine Rideout , Q.C. , for the intervener the Attorney General of Alberta. Khalid Janmohamed , Robin Nobleman and Ryan Peck , for the interveners the HIV & AIDS Legal Clinic Ontario and the HIV Legal Network.

Joanna Birenbaum , for the intervener the Barbra Schlifer Commemorative Clinic. Jessica Lithwick and Kate Feeney , for the intervener the West Coast Legal Education and Action Fund Association. Frances Mahon and Harkirat Khosa , for the intervener the Women’s Legal Education and Action Fund Inc. Mark C. Halfyard and Kate Robertson , for the intervener the Criminal Lawyers’ Association (Ontario). The judgment of Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ. was delivered by Martin J. — I.

Introduction [ 1 ] 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 ? [ 2 ] 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. [ 3 ] 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. II. Background [ 4 ] The appellant, Ross McKenzie Kirkpatrick, was charged with the sexual assault of the complainant based upon events that occurred in March 2017.

The allegation of criminal conduct relates only to the parties’ second act of vaginal sexual intercourse in which Mr. Kirkpatrick admits he penetrated and ejaculated into the complainant without wearing a condom. [ 5 ] The complainant was the only person to give evidence at trial. She testified that she was 22 years old at the time of the trial and that she and Mr. Kirkpatrick met online. After messaging back and forth, she thought he could be a potential sexual partner and they met in person to determine if they wanted to have sex with each other.

In that meeting, they discussed themselves, past sexual partners and present sexual practices. The complainant made clear to Mr. Kirkpatrick that she would only agree to sex using condoms. While he said that he “hasn’t used them”, she “mentioned that I only have sex if I use condoms. It’s the only way I feel like it’s the safest for everyone involved” (A.R., vol. II, at p. 17). During that conversation, the appellant also agreed that it is safest for everyone involved to use condoms. [ 6 ] A few days after this meeting, the complainant and Mr. Kirkpatrick arranged to meet at Mr. Kirkpatrick’s home to have sex.

They went to Mr. Kirkpatrick’s bedroom. When Mr. Kirkpatrick “motioned for [her] to . . . get on his penis” (A.R., vol. II, at p. 20), she asked him if he had any condoms and told him that if he did not, she had brought some with her. When questioned at trial about why she had asked this, she replied that it was “[b]ecause I only have protected sex. And I -- and I wanted to have sex, so I wanted to make sure that he had a condom” (A.R., vol. II, at p. 22). [ 7 ] Mr. Kirkpatrick told the complainant that he had condoms, and he put one on. It was dark in the room, but the complainant saw Mr.

Kirkpatrick turn to his right and take a condom from his bedside table. She heard the wrapper open and saw Mr. Kirkpatrick making motions consistent with putting on a condom. They proceeded to have vaginal intercourse, with the complainant positioned on her back. Mr. Kirkpatrick asked the complainant where he could ejaculate, and she told him he could not ejaculate on her vagina or buttocks. Mr. Kirkpatrick removed the condom and ejaculated on the complainant’s stomach. [ 8 ] After they finished having sex in his room, they were in the bathroom together. While there, the complainant asked Mr.

Kirkpatrick whether he wore a condom and he said he did. She asked to see it because the bedroom was dark and it was important to her that he had worn one. He went back to his room, retrieved it and showed it to her. She saw that the condom was stretched out and was reassured it had been used. [ 9 ] The complainant fell asleep in Mr. Kirkpatrick’s bed and was awakened to Mr. Kirkpatrick placing his erect penis against her buttocks. She pushed him away and saw him turn towards his bedside table — the same one from which he had previously retrieved a condom. She thought he put a condom on.

She repositioned herself onto her stomach and Mr. Kirkpatrick penetrated her vaginally with his penis. After about a minute, he asked the complainant if this felt better than the last time. She agreed, believing that he was referring to the different position. [ 10 ] After a period of time, they changed position and she was then on her back. When his penis fell out he asked her to guide it back into her, which she did. They continued to have sex until Mr. Kirkpatrick ejaculated inside her.

It was not until this point that the complainant realized that during this second episode of intercourse he had not been wearing a condom. [ 11 ] The complainant testified that she felt shocked and panicked and left the bedroom. She had trusted Mr. Kirkpatrick based on their previous discussions and his use of a condom when they first had intercourse previously that evening. She was upset by the lack of respect he had shown for the boundaries she had set and the lack of concern he had shown for the potential repercussions and consequences she could face from his decision not to use a condom. Mr.

Kirkpatrick suggested she “could just get an . . . abortion” (A.R., vol. II, at p. 25). When she expressed fear of contracting a sexually transmitted infection (“STI”), he was very relaxed about the idea of transmission because he said people could now just live with infections such as HIV, chlamydia and gonorrhea. [ 12 ] The next afternoon, the complainant texted Mr. Kirkpatrick to ask him why he had not worn a condom despite her specific request that he do so. He replied that he had been “too excited” to put a condom on (A.R., vol. II, at p. 27).

When the complainant expressed her view that this could be considered sexual assault, her impression was that Mr. Kirkpatrick thought “it was really funny” (A.R., vol. II, at p. 28). He responded in various texts by sending her a pornography video called “Oh my god, daddy came inside me” and offering to have his friends “gang bang” her (A.R., vol. II, at p. 28). [ 13 ] On the advice of medical professionals, the complainant followed a 28-day course of preventive HIV treatment.

The treatment had serious physical and mental side effects that affected her day-to-day life and her ability to work. [ 14 ] In cross-examination, she maintained that their discussion about the need for condom use not only occurred, but that without it, she would not otherwise have gone to his house and agreed to have sex. She testified that she said multiple times that she only

had sex with condoms and that “if we didn’t have a conversation about safe sex before I had sex with him, I wouldn’t have been therethat night” (A.R., vol. II, at p. 62). She said his disregard of her express and explicit condition to only have safe sex with a condom wasequivalent to “rape”. [15] At the close of the Crown’s case, Mr. Kirkpatrick applied to have the charge of sexual assault dismissed by bringing ano-evidence motion. He argued the Crown had failed to prove the absence of the complainant’s consent, an essential element in the actusreus of sexual assault. Specifically, he argued that based on R. v.

Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, her agreement tosexual intercourse was enough to establish consent to the “sexual activity in question” under s. 273.1(1) of the Criminal Code and therewas no evidence that this consent was tainted by fraud under s. 265(3)(c).

The Crown argued that the sexual intercourse without therequired condom was not consensual and alternatively, consent was vitiated by fraud. [16] In determining whether to grant a no-evidence motion, the trial judge must ask “whether or not there is any evidenceupon which a reasonable jury properly instructed could return a verdict of guilty” (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, atpara. 21, quoting United States of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067, at p. 1080; see also R. v.Monteleone, (SCC), [1987] 2 S.C.R. 154, at pp. 160-61).

The Crown must adduce some evidence of culpability forevery essential definitional element of the crime (R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, at paras. 2-3). If thereis any such admissible evidence, a directed verdict is not available (Monteleone, at pp. 160-61; R. v. Barros, 2011 SCC 51, [2011] 3S.C.R. 368, at para. 48). [17] On a no-evidence motion, the motion judge is compelled, as are we, to accept the facts as stated by the complainantin her testimony as true.

The accused may have a different version of events, but the question is whether her evidence, if believed, wouldjustify a conviction (Monteleone, at pp. 160-61, citing Shephard, at p. 1080). A. Provincial Court of British Columbia, 2018 BCPC 415 (Solomon Prov. Ct. J.) [18] The trial judge granted Mr. Kirkpatrick’s no-evidence motion and dismissed the sexual assault charge. Relying onHutchinson, the judge concluded that based on the complainant’s evidence, she had “consented to all the physical acts of sexual relationsthat the parties engaged in”, despite the fact that no condom was used (para. 27 ).

Thus, the only issue was whether there wasany evidence of fraud vitiating consent. Fraud requires proof of the accused’s dishonesty, which can include non-disclosure, and adeprivation in the form of significant risk of serious bodily harm from that dishonesty. The judge reasoned that, because Mr. Kirkpatrickhad made no efforts to deceive the complainant into believing he had worn a condom, there was no evidence of dishonesty and thereforeno evidence to support a finding of fraud. B.

Court of Appeal for British Columbia, 2020 BCCA 136, 63 C.R. (7th) 338 (Saunders, Groberman and Bennett JJ.A.) [19] The Court of Appeal for British Columbia unanimously allowed the Crown’s appeal, set aside the acquittal, andordered a new trial, although the judges split on the reasoning as to which Criminal Code provision applied in examining consent:s. 273.1(1) or s. 265(3)(c). [20] Groberman J.A. concluded that the trial judge had erred in finding that the complainant had consented to the sexualactivity in question under s. 273.1(1).

He held that Hutchinson should not be read as excluding important physical aspects — such as thewearing of a condom — from forming part of the sexual activity in question. Therefore, there was no consent in this case. GrobermanJ.A. did, however, agree with the trial judge’s conclusion that there was no evidence to support that Mr. Kirkpatrick had attempted todeceive the complainant with respect to condom use so as to engage a fraud analysis under s. 265(3)(c). [21] Bennett J.A. disagreed with Groberman J.A.’s reading of Hutchinson.

In her view, the majority reasons in Hutchinsonrejected the notion that condom use can form part of the sexual activity in question; instead, deception with respect to condom use mustbe analyzed under the fraud provision in s. 265(3)(c). On the facts of this case, however, she held the trial judge erred in concludingthere was no evidence of fraud. [22] Saunders J.A. agreed in part with both of her colleagues’ reasons, but on different issues. She agreed with GrobermanJ.A.’s reading of Hutchinson, and in the alternative with Bennett J.A.’s conclusion that there was evidence of fraud. III.

Issues [23] This appeal raises two questions. First, when a complainant makes their consent to sexual intercourse conditional ontheir partner wearing a condom, does failure to wear a condom result in “no voluntary agreement of the complainant to engage in thesexual activity in question” under s. 273.1(1) of the Criminal Code, or should failure to wear a condom be analyzed under the fraudprovision in s. 265(3)(c)? [24] Second, what is required to establish fraud, and was there some evidence of dishonesty by the appellant capable ofconstituting fraud vitiating consent under s. 265(3)(

c) of the Criminal Code? IV. Analysis A. The Analytical Framework for Consent and Condom Refusal or Removal [25] Two alternative pathways are available to decide the legal effect of Mr. Kirkpatrick’s failure to wear a condom on theactus reus of sexual assault. To resolve the correct approach, I begin by providing an overview of the offence of sexual assault, includinga 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 theappellant and then explain why, when it is a condition of the complainant’s consent, condom use must form part of the “sexual activityin question” under s. 273.1 of the Criminal Code. This is the only

interpretation that provides a harmonious reading of the text of therelevant provisions in their entire context and that accords with Parliament’s purpose of promoting personal autonomy and equal sexualagency. Finally, I will explain why Hutchinson does not mandate another result for the specific issue raised in this appeal.

(1) The Offence of Sexual Assault [26] In the early 1980s, Parliament modernized and fundamentally restructured the Criminal Code provisions on sexualoffences. It repealed discriminatory evidentiary rules and moved away from prior specific provisions, like the prohibition against rape, toinstead adopt prohibitions grounded in the law of assault. This change reflected the shift away from “categorizing sexual offences basedon the nature of the sexual act and the perceived chastity of the victim”, and “toward an understanding that treats sexual assault muchmore like other crimes of violence” (J.

Benedet, “Judicial Misconduct in the Sexual Assault Trial” (2019), 52 U.B.C. L. Rev. 1, at p. 17). [27] As a result, under s. 265(1)(

a) of the Criminal Code, a person commits an assault by intentionally applying force toanother person, directly or indirectly, without their consent. Where the assault is sexual in nature, it is an offence under s. 271 of theCriminal Code. Placing assault at the core of the new offences conveyed the central role consent was intended to play in distinguishingcriminal sexual conduct from agreed-to sexual activity. [28] The foundational nature of consent to the offence of sexual assault is demonstrated in its centrality to both the actusreus and the mens rea elements of the offence.

The actus reus of the offence is “unwanted sexual touching”, while the mens rea is theintention to touch, knowing, being reckless of, or being wilfully blind to a lack of consent from the person being touched (R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 23). For the actus reus, the absence of consent is entirely subjectiveand dependent on the complainant’s state of mind about whether they wanted the touching to take place at the time it occurred(Ewanchuk, at paras. 25-27 and 31). There is no need to inquire into the accused’s perspective at the actus reus stage (R. v.

Barton, 2019SCC 33, [2019] 2 S.C.R. 579, at paras. 87 and 89). [29] In 1992, Parliament introduced further amendments to sexual assault in Bill C-49, the Act to amend the CriminalCode (sexual assault), S.C. 1992, c. 38, s. 1, to correct outdated approaches that linked non-consent to physical resistance and to settledebates as to whether passivity, silence, non-resistance or submission could constitute consent.

These amendments defined consent forthe first time in s. 273.1(1), set out certain circumstances where no consent was obtained as a matter of law in s. 273.1(2), and limitedaccess to the defence of honest but mistaken belief in communicated consent in s. 273.2. [30] Parliament expressly stated its remedial purpose and objectives for enacting these amendments in the

preamble to BillC-49. These amendments were designed to reflect the realities, concerns and rights of complainants, reduce the fear of sexual assault,and encourage the reporting of this traditionally underreported crime. Parliament was “gravely concerned about the incidence of sexualviolence and abuse in Canadian society and, in particular, the prevalence of sexual assault against women and children” (Bill C-49,preamble).

Parliament wanted to ensure the “full protection of the rights guaranteed under sections 7 and 15 of the Canadian Charter ofRights and Freedoms” (protecting the rights to life, liberty and security of the person and the right to the equal protection and benefit ofthe law without discrimination). One of Parliament’s primary objectives was to promote gender equality and protect individuals’personal autonomy to make choices about their bodies and whether or not to engage in sexual activity (see House of Commons Debates,vol. VIII, 3rd Sess., 34th Parl., April 8, 1992, at pp. 9505-7).

Its objectives are reflected in the framework for consent and the wording ofthe individual provisions we have today. [31]

Section 273.1 is a key provision and operates as the gateway to consent. It is specific to sexual offences, more recentthan s. 265(3) and was enacted to “recogniz[e] the unique character of the offence of sexual assault” (Bill C-49,

preamble).Subsection 273.1(1) requires “the voluntary agreement of the complainant to engage in the sexual activity in question”.Subsection 273.1(2) provides a non-exhaustive list of circumstances in which no consent is obtained in law. At the relevant time, s. 273.1 provided:[1] 273.1

(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntaryagreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where (

a) the agreement is expressed by the words or conduct of a person other than the complainant; (

b) the complainant is incapable of consenting to the activity; (

c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (

d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (

e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue toengage in the activity.

(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [32] Subsections (1) and (2) in s. 273.1 both address consent and are to be read together. Subsection (2) is multifaceted andsheds further light on Parliament’s understanding of consent (R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 33 and 35). All butone of the circumstances outlined in s. 273.1(2) operate to clarify what subjective consent requires. Only s. 273.1(2)(

c) vitiates consent,where the complainant’s induced agreement by reason of an abuse of power, trust, or authority is deemed ineffective in law (R. v. G.F.,2021 SCC 20, at para. 44). [33] Section 265(3) applies to all forms of assault (including sexual assault). It lists four situations where consent is notobtained as a matter of law, including where consent is obtained by fraud. In these cases, there is subjective consent under s. 273.1, butthe law intervenes to vitiate that consent. Section 265(3) provides:

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (

a) the application of force to the complainant or to a person other than the complainant; (

b) threats or fear of the application of force to the complainant or to a person other than the complainant; (

c) fraud; or (

d) the exercise of authority. [34] At the heart of this case is consent at the actus reus stage. When vitiation under s. 265(3) is argued, Hutchinson setsout a two-step process for analyzing consent, even though it does not impose a strict order-of-operations (G.F., at paras. 51-52). At thefirst step, the question is whether the complainant consented to engage in the sexual activity in question under s. 273.1(1) (Hutchinson, atpara. 4).

If the complainant consented, or their conduct raises a reasonable doubt about the lack of voluntary agreement to the sexualactivity in question, the second step is to consider whether there are any circumstances under s. 265(3) or s. 273.1(2)(c) — includingfraud — that vitiate the complainant’s “apparent consent” (Hutchinson, at para. 4).

If the complainant has not consented in the firstplace, there is no consent to be vitiated under s. 265(3) or s. 273.1(2)(c). [35] This Court explained in G.F. how the distinction between a lack of subjective consent to the sexual activity inquestion under s. 273.1(1) and the vitiation of consent “may be subtle, but it is important” (para. 36). While a lack of subjective consentunder s. 273.1(1) is directly linked to the voluntary agreement to the sexual activity in question, vitiating factors under s. 265(3) ors. 273.1(2)(

c) are instead tied to various general policy considerations (G.F., at para. 36).

(2) The Arguments of the Parties [36] The respondent Crown submits that condom use is relevant to a complainant’s consent and is an important aspect ofsexual activity within s. 273.1. It says that sex with and without a condom are fundamentally different forms of touching and arephysically different types of “sexual activity” under s. 273.1(1). A complainant who consents to sex on the condition that their partnerwears a condom does not consent to sex without a condom. Where their partner ignores the request for a condom, the sexual intercourseis non-consensual.

In such a case, where the trier of fact finds that the complainant did not voluntarily agree to engage in the sexualactivity in question, there is no consent, the actus reus is established and the analysis turns to mens rea. If Hutchinson dictates a differentresult, the Crown asks this Court to overturn that decision and clarify the law. [37] Alternatively, Mr. Kirkpatrick argues that the only route to a finding of no consent for his failure to wear a condom isfraud under s. 265(3). He submits that the complainant agreed to the sexual activity in question on the basis that she agreed to vaginalsexual intercourse.

He claims her consent can only be vitiated if the Crown proves beyond a reasonable doubt: (1) dishonesty, includingfalsehoods and deliberate deceit as well as the non-disclosure of important facts; and (2) deprivation, or risk of deprivation, whichconsists of actual risk of serious bodily harm (R. v. Cuerrier, (SCC), [1998] 2 S.C.R. 371, at para. 116; R. v. Mabior,2012 SCC 47, [2012] 2 S.C.R. 584, at para. 12).

Serious bodily harm includes physical or psychological hurt or injury that “interferes ina substantial way with the integrity, health or well-being of a victim” (Mabior, at para. 82) and is often tied to physical harms such as therisk of pregnancy and/or sexually transmitted infection (Hutchinson, at paras. 69 and 71). He claims Hutchinson decided that in all cases,condom use can never form part of the physical act and is therefore always irrelevant to consent under s. 273.1(1).

He argues that theCrown cannot and did not establish that he deceived the complainant or that she suffered serious bodily harm or a significant risk thereofas a result of his deception. He therefore submits that the trial judge was correct to dismiss the case against him. [38] The parties’ arguments and the decisions at the Court of Appeal demonstrate the two alternative pathways available todecide the legal effect of Mr. Kirkpatrick’s failure to wear a condom on the actus reus of sexual assault.

(3) Interpreting the “Sexual Activity in Question” in

Section 273.1(1) [39] The starting point and primary provision for determining whether there is consent to sexual activity for sexual assaultoffences is s. 273.1. This particular

section was enacted more recently than s. 265(3) and was singularly designed for and uniquelydirected to sexual assault offences. This statutory definition of consent plays a central role in Parliament’s assault-based prohibitionsagainst sexual violence. The key term “sexual activity in question” in s. 273.1(1) exists within a composite phrase that requires

“voluntary agreement . . . to engage in the sexual activity in question”. We are to seek Parliament’s intent as demonstrated by the text, context, and purpose of the sexual assault provisions and interpret it consistently with this Court’s considerable jurisprudence on consent and “harmonious[ly]” with all parts of s. 273.1 and the overall legislative scheme ( J.A. , at para. 33 ). [ 40 ] The legal meaning given to the “sexual activity in question” cannot be narrowly drawn or fixed for all cases.

Like the consent of which it is part, it is tied to context and cannot be assessed in the abstract; it relates to particular behaviours and actions ( Hutchinson , at para. 57; Barton , at para. 88 ). Much will depend on the facts and circumstances of the individual case. In a very real way, it will be defined by the evidence and the complainant’s allegations. What touching does the complainant say was unlawful? Which acts were beyond the boundaries of any consent given? The sexual activity in question will emerge from a comparison of what actually happened and what, if anything, was agreed to.

This is bound to change in every case. [ 41 ] Here, the complainant makes no complaint about the first act of vaginal intercourse in which the appellant used the required condom. She nevertheless claims that she never consented to what he did subsequently, which was to have vaginal intercourse without a condom.

The specific sexual assault alleged, and the sexual activity in question, was therefore vaginal sexual intercourse without a condom. [ 42 ] In determining whether her agreement to sexual intercourse with a condom means she also agreed to sexual intercourse without a condom, we start with the proposition from Hutchinson that the “sexual activity in question” that the complainant must agree to is the “specific physical sex act” (para. 54 (emphasis deleted)). The focus should therefore be on the specific sex act(s), defined by reference to the physical acts involved.

The Court in Hutchinson also provided examples of different physical acts, like “kissing, petting, oral sex, intercourse, or the use of sex toys” (para. 54). These were mere illustrations and operate only in comparison to each other in the sense that kissing is a different physical activity than petting; petting is not the same thing as oral sex; and intercourse is distinguished from the use of sex toys.

These are not closed or mandatory legal categories of broad sexual activity, regardless of the particular evidence and allegations at issue. [ 43 ] Applying Hutchinson ’s focus on the “specific physical sex act”, condom use may form part of the sexual activity in question because sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom. To state the obvious, the physical difference is that intercourse without a condom involves direct skin-to-skin contact, while intercourse with a condom involves indirect contact.

Indeed, this difference, of a changed physical experience, is put forward by some men to explain why they prefer not to wear a condom ( K. Czechowski et al., “That’s not what was originally agreed to”: Perceptions, outcomes, and legal contextualization of non-consensual condom removal in a Canadian sample , in PLoS ONE, 14(7), July 10, 2019 (online), at p. 2) . [ 44 ] The law recognizes that consent to penetration in one area of the body does not constitute consent to penetration in a different area because these are distinct physical acts ( Hutchinson , at para. 54).

Similarly, consent to a form of touching may depend on what is being used to touch the body because the law appreciates there is a physical difference between being touched by a digit, penis, sex toy or other object. It is also clear, for example, that the law sees different specific physical sex acts when a person who has obtained consent to touch a woman’s chest over her clothing instead reaches underneath her clothing to make direct skin to skin contact with her bare breast. In the same way, being touched by a condom-covered penis is not the same specific physical act as being touched by a bare penis.

Logically and legally, direct and unmediated sexual touching is a different physical act than indirect and mediated contact. Indeed, given the centrality of the distinction, whether a condom is required is basic to the physical act. [ 45 ] All principles of statutory

interpretation compel the conclusion that sex with a condom is a different physical activity than sex without a condom. It is the only meaning of the “sexual activity in question” that reads s. 273.1 as a whole and harmoniously with this Court’s jurisprudence on subjective and affirmative consent. In addition, it fulfills Parliament’s objective of giving effect to the equality and dignity-affirming aims underlying the sexual assault prohibitions; responds to the context and harms of non-consensual condom refusal or removal; and respects the restraint principle in criminal law.

While vitiation by fraud may still arise in other cases, it does not apply when condom use is a condition of consent. (

a) It Is the Only Harmonious Reading of

Section 273.1 As a Whole [ 46 ] Principles of statutory

interpretation require that the text of provisions must be read as a whole and harmoniously. It is presumed that provisions are intended to work together as parts of a functioning whole to form a rational, internally consistent framework (R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at §11.2; R. v. L.T.H. , 2008 SCC 49 , [2008] 2 S.C.R. 739, at para. 47 ).

It follows that when interpreting Parliament’s definition of consent expressed in s. 273.1 , subss. (1) and (2) must be read together in a consistent manner. [ 47 ] In enacting a definition of consent, Parliament specified situations where no consent would be obtained in relation to sexual assault offences in s. 273.1(2).

Section 273.1(2)(

d) and (

e) in particular provides that there can be no consent if the “complainant expresses, by words or conduct, a lack of agreement to engage in the activity” or, “having consented to engage in sexual activity, expresses . . . a lack of agreement to continue to engage in the activity”.

While a complainant is not required to express her lack of consent for the actus reus to be established, when she does so it is directly relevant to whether or not there was subjective consent to the sexual activity in question and may also impact whether a mistaken belief in consent could be reasonable under the mens rea analysis ( J.A. , at paras. 23-24, 41 and 45-46 ). [ 48 ] These subsections underscore how the complainant’s words and actions are directly relevant to whether or not there was consent to the sexual activity in question.

Based on the complainant’s evidence in the case at bar, she expressed, by words and conduct, a lack of agreement to engage in sexual intercourse without a condom.

Section 273.1(2)(

d) expressly reinforces that the clear rejection of a specific activity must be respected if consent is to have any meaning. Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on its use. As stated by L’Heureux-Dubé J. in Ewanchuk , s. 273.1(2)(d) “acknowledges that when a woman says ‘no’ she is communicating her non-agreement, regardless of what the accused thought it meant, and that her expression has an enforceable legal effect” (para. 101).

[49] Recognizing that condom use may form part of the sexual activity in question is also the only way to respect the needfor a complainant’s affirmative and subjective consent to each and every sexual act, every time. It not only affirms that individuals havethe right to determine who touches their bodies and how; it situates condom use at the definitional core of consent, where it belongs. It isthe only

interpretation consistent with the foundational principles of consent expressed in s. 273.1 and this Court’s longstandingjurisprudence, including Hutchinson. [50] Including condom use as part of the sexual activity in question properly places the focus at the doctrinal heart of theactus reus analysis: was there actual consent under s. 273.1? Since Ewanchuk, this Court has consistently emphasized the centrality ofthe complainant’s subjective perspective at the actus reus stage (J.A., at paras. 23 and 45-46; Barton, at paras. 87-89; G.F., at paras. 29and 33).

The assessment of consent under s. 273.1(1) is determined by reference to the complainant’s internal state of mind towards thetouching, when it happened (Ewanchuk, at paras. 26 and 61).

It is a purely subjective approach where the complainant’s individualperspective alone is determinative: they either consented or not (Ewanchuk, at paras. 27 and 31; J.A., at para. 23; Barton, at para. 89).The accused’s perspective is irrelevant at this stage (Barton, at paras. 87 and 89). [51] According to the foundational principles of consent, the complainant’s reasons for granting or withholding consentand insisting on a condom are not relevant: “If the complainant did not subjectively consent (for whatever reason) then the actus reus isestablished” (G.F., at para. 33 (emphasis added)).

That all persons are entitled to refuse sexual contact at any time, and for any reason, isa fundamental principle of Canadian sexual assault law (J.A., at para. 43; G.F., at para. 33). All persons “have an inherent right toexercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in” (R. v. Park, (SCC), [1995] 2 S.C.R. 836, at paras. 38 and 42; Ewanchuk, at para. 75, per L’Heureux-Dubé J., concurring).

Each person’s abilityto set the boundaries and conditions under which they are prepared to be touched is grounded in concepts as important as physicalinviolability, sexual autonomy and agency, human dignity and equality (Ewanchuk, at para. 28; G.F., at para. 1). As McLachlin C.J.explained in Mabior, the “modern understanding of sexual assault is based on the preservation of the right to refuse sexual intercourse:sexual assault is

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