Published In

Dalhousie Law Journal

Document Type

Working Paper

Publication Date



R v Kirkpatrick, R v Hutchinson, R v Ewanchuk, sexual activity, criminal law, sexual assault, consent, condom, fraud, deception


In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully recognize the central role that a condom plays in whether a woman agrees to participate in sexual activity.

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Criminal Law Commons