By Canadian Press

Supreme Court to make ruling in B.C. case on sexual consent and use of protection

Jul 29, 2022 | 2:01 AM

OTTAWA — The Supreme Court of Canada will release a decision today that is expected to clarify how the use of a condom during sex relates to consent in sexual assault law.

The court will rule on a British Columbia case in which a complainant told a new sexual partner, Ross McKenzie Kirkpatrick, that she would only have sex with him if he wore a condom.

The fact Kirkpatrick used a condom the first time they had sex led the complainant to assume that he was already wearing one when he initiated sex for a second time, she told the court — but he wasn’t, a fact she said she did not realize until he ejaculated. 

Kirkpatrick was acquitted of sexual assault, as the trial judge found there was no evidence the complainant had not consented to “the sexual activity in question,” nor that the defendant had been explicitly deceitful, which would have been another avenue for conviction. 

The B.C. Court of Appeal disagreed and ordered a new trial, which prompted Kirkpatrick’s appeal to the Supreme Court. 

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The B.C. Crown and interveners including the attorneys general of Ontario and Alberta urged the Supreme Court to recognize sex with a condom and unprotected sex as two distinct activities, such that the law will not equate consent for one as consent for the other.

This report by The Canadian Press was first published July 29, 2022.

The Canadian Press