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Supreme Court Chief Justice Richard Wagner speaks during a welcoming ceremony on Oct. 28, 2021, in Ottawa. At a hearing on Wednesday, he asked repeatedly why the court should throw out a precedent that is only seven years old.Adrian Wyld/The Canadian Press

The Supreme Court of Canada faced calls from women’s groups and prosecutors to address the growing phenomenon of “stealthing” – men who pretend to use a condom when their partner insists on one.

The sexual-assault case of Ross Kirkpatrick of British Columbia is forcing Canada’s highest court to re-examine a seven-year-old precedent on condoms and consent, and ask whether it is already out of date, or whether the court simply got it wrong in the first place.

At a hearing on Wednesday, the court heard that Mr. Kirkpatrick had met a woman online who told him prior to sexual activity that he must use a condom. Mr. Kirkpatrick wore one in an initial encounter, but woke her in the night for a second encounter, and did not wear one. The question is how to determine whether he committed a sexual assault.

California makes it illegal to remove condom without consent

In 2014, the court established an approach in a similar case in which a man deliberately punctured his condom and a woman became pregnant. Under that approach, the prosecution must establish fraud – that is, deceit causing harm, or a risk of harm – to show that a sexual assault occurred. The court split 4-3 in the earlier case, called Hutchinson, though all agreed the man was guilty of sexual assault. The dissenters said that when a condom is made a condition of sexual activity, no condom means no consent; it is not necessary to show fraud.

The difference between the two approaches is not just a technical one. The B.C. Court of Appeal, in the Kirkpatrick case, said that if the 2014 precedent were taken at face value, Canada’s sexual-assault law would be “seriously out of touch with reality, and dysfunctional” in its protection of sexual autonomy, a comment echoed by prosecutors from B.C., Alberta and Ontario, and three women’s groups, at the Supreme Court.

Mr. Kirkpatrick was found not guilty at his trial by a judge who said there was no evidence of deceit, under the approach set out in 2014. The appeal court opted 2-1 to order a new trial.

Fraud can be difficult to prove, making it harder to hold perpetrators accountable. Stealthing, meanwhile, has raised concerns among women’s groups, and last month California became the first state to make stealthing a civil offence, allowing victims to sue perpetrators for damages.

Chief Justice Richard Wagner asked repeatedly why the court should throw out a precedent that is only seven years old. He is the only judge left on the court from the majority. Two of the dissenters are still on the court.

“Why should we change the precedent only because the names of the justices have changed?” he asked.

The court appeared split. Justice Malcolm Rowe said he shared concerns expressed by the majority in 2014: that without the requirement to prove fraud, some incidents would be criminalized that shouldn’t be. That is, where one party sets a condition, and the other party violates it.

“I’m holding up my wedding ring,” Justice Rowe said, “and I’m a scoundrel, and I put this in my pocket. On that basis, things proceed, shall we say. I’m a scoundrel, but is this a sexual assault? That’s really the kind of thing we’re trying to avoid, isn’t it?”

Others, such as Justice Mahmud Jamal, found little merit in Justice Rowe’s observation, suggesting the law is clear that physical activity is what’s at issue.

Justice Michael Moldaver said that, since the 2014 ruling (in which he co-wrote the dissent), and even before, the court had gone to great lengths to stress the right of complainants to autonomy and dignity.

The Barbra Schlifer Commemorative Clinic, in a filing at the court, called non-consensual condom removal, refusal or sabotage “a clear form of sexual assault, when understood as the denial of a woman’s sexual autonomy, reinforcing a woman’s status as a sexual object whose body serves as the means to the perpetrator’s own ends.”

Frances Mahon, a lawyer representing the Women’s Legal Education and Action Fund, an intervenor, told the judges that the fraud requirement creates a gap in cases where there is no deceit, just a disregard of the complainant’s condition that a condom be used for sex.

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