The appellant was charged with sexual assault after engaging in vaginal intercourse without a condom, having been expressly told by the complainant that her consent was conditional on condom use.
The trial judge granted a no-evidence motion and dismissed the charge on the basis that the complainant had consented to all the physical acts involved, leaving only a fraud analysis under s. 265(3)(c) of the Criminal Code.
The majority of the Supreme Court held that when condom use is a condition of consent, it forms part of the 'sexual activity in question' under s. 273.1(1), and intercourse without a condom is a fundamentally different physical act than intercourse with one, such that there was evidence of a lack of subjective consent.
The concurring minority agreed the appeal should be dismissed but held that Hutchinson applies and all condom-related consent must be analyzed under the fraud provision, articulating a detailed framework for horizontal stare decisis.
The appeal was dismissed and a new trial ordered.
