B.C. condom use, consent case before Canada’s top court could have broad implications

The outcome of a case that is currently before the Supreme Court of Canada could have broad implications on the interpretation of the law surrounding consent and sexual assault.

In 2017, a B.C. woman, whose identity is protected by a publication ban, twice had sex with a Vancouver-area man.

She wanted him to wear a condom. But he didn’t on the second occasion, unbeknownst to her.

Ross McKenzie Kirkpatrick was charged with sexual assault, but was later acquitted at trial. But the B.C. Court of Appeal ordered a new trial, prompting the man’s appeal to the Supreme Court.

The definition of consent is among the top considerations being heard by Canada’s top court. However, many groups are worried about what kind of precedent the outcome of this case could have going forward.

“Every time there is an expanded definition or increased involvement of criminal law, especially when it comes to sexuality, I become a little bit concerned. What might be the result for that?” said Erez Aloni with the Peter A. Allard School of Law.

There are a number of intervenors in this case. Among them is West Coast LEAF, which is raising concerns about the potential impacts of these legal proceedings and the case law on HIV and non-disclosure.

“There’s a tension between the case law on condom removal — stealthing — and condom sabotage, and the case law on HIV non-disclosure,” explained Kate Feeney, the organization’s director of litigation. “West Coast Leaf is really concerned about the inclusion of HIV non-disclosure in sexual assault law and we’d like to see it be removed from sexual assault law in order to reduce the overcriminalization of people living with HIV, including women living with HIV.”

Aaron Purdie and Evan Matchett-Wong are both with the Health Initiative for Men. They say there could be problems down the line for the LGBTQ2+ community, noting condom use is often tied to HIV disclosure.

With medications that make HIV nearly intransmissible, advocates say this could lead to stigma.

“With the paradigm of HIV, which has been criminalized for many, many years, we have seen first-hand the impacts of what happens when we criminalize a virus, which is not the same as criminalizing a behaviour, but we understand there are some interesting implications to that criminalization if that were to occur,” Purdie explained.

“Part of it, too, is that, with medical advancements, law and policy have to follow suit,” added Matchett-Wong. “We can’t reliably use laws and policies that were written before certain medical advancements, especially in the case of HIV. And a lot of this is not only determined by law makers and policy makers, but also judges in the courts who decide on these cases.”


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This is why both Matchett-Wong and Purdie say sexual health education and consent education must be top priority.

“I think the biggest component is trying to secure enthusiastic consent. So, as opposed to no means no, it really should be an enthusiastic yes means yes,” said Matchett-Wong, adding “it’s less ambiguous, it’s more direct, and it can prevent a whole lot of complications.”

For now, the justices at Canada’s highest court have taken the info from the hearing under advisement. It’s unclear when a judgement will be made.

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