Dalhousie Law Journal
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.
Lise Gotell & Isabel Grant, "Does 'No, Not without a Condom' Mean 'Yes, Even Without a Condom'?: The Fallout from R v Hutchinson" ([forthcoming in 2020]) 43:2 Dal LJ.