The accused was tried on one count of sexual assault arising from a sexual encounter arranged through an online dating application.
The central issue was whether the complainant consented to intercourse without a condom, where she had expressly communicated beforehand that condoms were mandatory and that "no means no." Applying the W.(D.) framework, the court rejected the accused's evidence, accepted the complainant's evidence on the critical issue of condom use, and found beyond a reasonable doubt that intercourse without a condom occurred without consent.
The court further held that sex without a condom was a qualitatively different act from the agreed activity and, in any event, any apparent consent was vitiated by fraud under s. 265(3) of the Criminal Code, applying Hutchinson because the conduct increased the risk of pregnancy.
The accused was found guilty of sexual assault.
