Supreme Court of Canada

Appeal Heard: November 3, 2021 Judgment Rendered: July 29, 2022 Docket: 39287

Parties

Between:

Ross McKenzie Kirkpatrick — Appellant

v.

Her Majesty The Queen — Respondent

— and —

Attorney General of Ontario, Attorney General of Alberta, HIV & AIDS Legal Clinic Ontario, HIV Legal Network, Barbra Schlifer Commemorative Clinic, West Coast Legal Education and Action Fund Association, Women's Legal Education and Action Fund Inc. and Criminal Lawyers' Association (Ontario) — Interveners

Indexed as: R. v. Kirkpatrick

2022 SCC 33

File No.: 39287.

2021: November 3; 2022: July 29.

Present: Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin, Kasirer and Jamal JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Headnote

Reasons for Judgment: (paras. 1 to 108) Martin J. (Moldaver, Karakatsanis, Kasirer and Jamal JJ. concurring)

Joint Concurring Reasons: (paras. 109 to 310) Côté, Brown and Rowe JJ. (Wagner C.J. concurring)

Criminal law — Sexual assault — Consent — Complainant consenting to sexual intercourse on condition that accused wear condom — Complainant realizing after intercourse that accused failed to wear condom — Whether accused's failure to wear condom when complainant's consent conditional on its use results in there being no voluntary agreement of complainant to engage in sexual activity in question — Alternatively, whether such failure can constitute fraud vitiating complainant's consent — Criminal Code, R.S.C. 1985, c. C‑46, ss. 265(3)(c), 273.1(1).

The complainant testified that she and K met online and then in person to determine if they wanted to have sex with each other. The complainant made clear to K that she would only agree to have sex with him if he wore a condom. Despite this, during their second episode of intercourse, K did not wear a condom. The complainant only realized that K had not been wearing a condom after he ejaculated inside her. Based upon these events, K was charged with sexual assault.

K applied to have the charge dismissed by bringing a no‑evidence motion. He argued that the Crown failed to prove the absence of the complainant's consent — an essential element in the actus reus of sexual assault — based on the Court's decision in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, which sets out a two‑step process for analyzing consent. At the first step, the question is whether the complainant consented to engage in the "sexual activity in question" under s. 273.1(1) of the Criminal Code, which is defined by reference to the specific physical sex act involved. If the complainant consented, or her conduct raises a reasonable doubt about her consent, the second step is to consider whether there are any circumstances under s. 265(3) or s. 273.1(2)(c), including fraud, that vitiate her apparent consent. Fraud under s. 265(3)(c) requires proof of the accused's dishonesty, which can include non‑disclosure, and a deprivation in the form of significant risk of serious bodily harm from that dishonesty. K argued that the complainant's agreement to sexual intercourse was enough to establish consent to the sexual activity in question, as she consented to all the physical acts the parties engaged in, and there was no evidence that this consent was tainted by fraud.

The trial judge granted K's no‑evidence motion and dismissed the sexual assault charge. The Court of Appeal unanimously allowed the Crown's appeal, set aside the acquittal and ordered a new trial; however, the three judges split on the reasoning as to which Criminal Code provision applied in examining consent: s. 273.1(1) or s. 265(3)(c). K appeals to the Court from the setting aside of his acquittal.

Held: The appeal should be dismissed.

Per Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ.: Condom use, when it is a condition of the complainant's consent, forms part of the "sexual activity in question" under s. 273.1 of the Criminal Code. This is the only interpretation that provides a harmonious reading of the text of the relevant provisions in their entire context and that accords with Parliament's purpose of promoting personal autonomy and equal sexual agency. Conditioning agreement to sexual touching on condom use goes to the heart of the specific physical activity in question and the existence or non‑existence of subjective consent, and there is no need to resort to the doctrine of fraud and its stringent legal requirements. Hutchinson remains binding authority for what it decided — that cases involving condom sabotage and deceit should be analyzed under the fraud provision rather than as part of the sexual activity in question — but is distinguishable in situations such as in the case at bar where the accused refuses to wear a condom and the complainant's consent has been conditioned on its use. In the instant case, the complainant gave evidence that she had communicated to K that her consent to sex was contingent on condom use and K did not wear a condom. This was evidence of a lack of subjective consent by the complainant to the sexual activity in question — an element of the actus reus of sexual assault. As a result, the trial judge erred in granting K's no evidence motion.

The starting point and primary provision for determining whether there is consent to sexual activity for sexual assault offences is s. 273.1. The key term "sexual activity in question" in s. 273.1(1) exists within a composite phrase that requires "voluntary agreement . . . to engage in the sexual activity in question". Parliament's intent as demonstrated by the text, context, and purpose of the sexual assault provisions must be sought and interpreted consistently with the Court's jurisprudence on consent and harmoniously with all parts of s. 273.1 and the overall legislative scheme. The legal meaning given to the "sexual activity in question" cannot be narrowly drawn or fixed for all cases — it is tied to context and cannot be assessed in the abstract, relates to particular behaviours and actions, and will depend on the facts and circumstances of the individual case. It will be defined by the evidence and the complainant's allegations, and will emerge from a comparison of what actually happened and what, if anything, was agreed to.

In the instant case, the specific sexual assault alleged and the sexual activity in question is vaginal sexual intercourse without a condom. In determining whether the complainant's agreement to sexual intercourse with a condom means she also agreed to sexual intercourse without a condom, the starting point is the proposition from Hutchinson that the "sexual activity in question" the complainant must agree to is the "specific physical sex act". The focus should therefore be on the specific sex acts, defined by reference to the physical acts involved. Applying Hutchinson's focus on the "specific physical sex act", condom use may form part of the "sexual activity in question" under s. 273.1(1) because sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom. The physical difference is that intercourse without a condom involves direct skin‑to‑skin contact, while intercourse with a condom involves indirect contact. Logically and legally, direct and unmediated sexual touching is a different physical act than indirect and mediated contact; whether a condom is required is basic to the physical act.

All principles of statutory interpretation compel the conclusion that sex with a condom is a different physical activity than sex without a condom for the purposes of the "sexual activity in question". It is the only interpretation that reads s. 273.1 as a whole and harmoniously with the Court's jurisprudence on subjective and affirmative consent. When interpreting Parliament's definition of consent expressed in s. 273.1, subs. (1) must be read together with subs. (2), which specifies situations where no consent would be obtained in relation to sexual assault offences. Section 273.1(2)(d) and (e) in particular underscore how the complainant's words and actions are directly relevant to whether or not there was consent to the sexual activity in question. Based on the complainant's evidence in the case at bar, she expressed, by words and conduct, a lack of agreement to engage in sexual intercourse without a condom. Section 273.1(2)(d) expressly reinforces that the clear rejection of a specific activity must be respected if consent is to have any meaning. Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it. Recognizing that condom use may form part of the sexual activity in question affirms that individuals have the right to determine who touches their bodies and how, is the only way to respect the need for a complainant's affirmative and subjective consent to each and every sexual act, and situates condom use at the definitional core of consent, where it belongs. The complainant's "no" to sexual intercourse without a condom cannot be ignored under either s. 273.1(1) or (2) because today, not only does no mean no, but only yes means yes. Further, voluntary agreement to sex with a condom cannot be taken to imply consent to sex without one as consent cannot be implied from the circumstances or the relationship between the accused and the complainant.

In addition, recognizing that condom use may be part of the sexual activity in question fulfills Parliament's objective of giving effect to the equality and dignity‑affirming aims underlying the sexual assault prohibitions, responds to the context and harms of non‑consensual condom refusal or removal, and respects the restraint principle in criminal law. Non‑consensual condom refusal or removal is a form of sexual violence generating physical and psychological harms. The power dynamic it rests on is exacerbated among vulnerable women and among people with diverse gender identities and sex workers. Preventing a complainant from limiting consent to circumstances where a condom is used erodes the right to refuse or limit consent to specific sexual acts, leaving the law of Canada seriously out of touch with reality, and dysfunctional in terms of its protection of sexual autonomy. There are no vagueness or certainty concerns if condom use is seen as part of the sexual activity in question. Asking whether a condom was required and if so, whether one was used, has the necessary certainty to prevent over‑criminalization. While restraint is an important criminal law principle, it does not override Parliament's countervailing imperative of enacting sexual assault laws that respect the rights and realities of those subject to such violence.

While vitiation of consent by fraud under s. 265(3)(c) may still arise in other cases, it does not apply when condom use is a condition of consent. Instead of asking whether the complainant subjectively wanted the touching to take place, fraud shifts the focus to how the accused behaved and asks whether he attempted to, or succeeded in, deceiving the complainant about his lack of condom use. The requirement to prove deception and a deprivation misdirects the inquiry and creates gaps which leave many outside the law's protection in relation to sexual assault. Such an approach should not be adopted where the complainant has not agreed to sex without a condom because: (1) requiring proof of a deprivation fails to account for how, under the law of consent, all persons are able to decide to consent or not based on whatever grounds are personally meaningful to them; (2) the harms of non‑consensual condom refusal or removal go beyond a significant risk of serious bodily harm and are much wider than the risk of pregnancy and STIs; (3) the harm requirement for fraud means that certain people and certain types of sex would not come within the law's protection; and (4) proving a significant risk of serious bodily harm will likely entail a patronizing assessment of whether the harm the complainant experienced was significant enough to vitiate a consent that, in their mind, was never given.

Hutchinson does not govern a case like the present one where consent turns on condom use and no condom was worn, and should therefore be distinguished. Hutchinson simply held that cases involving condom sabotage and deceit should be analyzed under the fraud provision rather than as part of the sexual activity in question in s. 273.1. Hutchinson was chiefly concerned with the delineation of deception under the criminal law and did not establish the sweeping proposition that all cases involving a condom fall outside s. 273.1 and can only be addressed when the conditions of fraud are established. The decision in Hutchinson is limited by its factual context and the majority's repeated references to the effectiveness of the condom, its sabotaged state and the accused's deception. In cases involving condoms, Hutchinson applies where the complainant finds out after the sexual act that the accused was wearing a knowingly sabotaged condom. If the complainant finds out during the sexual act that the condom was sabotaged, then they can revoke their subjective consent, the actus reus of sexual assault is made out, and there is no need to consider the fraud analysis.

Per Wagner C.J. and Côté, Brown and Rowe JJ.: There is agreement with the majority that the appeal should be dismissed. However, there is disagreement that Hutchinson is distinguishable. Hutchinson squarely applies to the case at bar. It held, categorically, that condom use is not part of "the sexual activity in question" contemplated in s. 273.1(1) of the Criminal Code. When a person agrees to have sex on the condition that their partner wear a condom, but that condition is circumvented in any way, the sole pathway to criminal liability is the fraud vitiating consent analysis under s. 265(3)(c). Applying Hutchinson to the present case, there is some evidence that the complainant consented to the sexual activity in question, but a new trial is required to determine whether her apparent consent was vitiated by fraud.

The case at bar is indistinguishable from Hutchinson for several reasons. First, the binding ratio decidendi of all the decisions of the Court, as an apex court, is necessarily wider than the majority acknowledges. When the question of law is one of statutory interpretation, the ratio of the binding precedent at issue must be understood in the context of the Court's role: to provide a clear and uniformly applicable interpretation of how a statutory provision is to be understood and applied by lower courts across Canada. Second, the interpretation of Hutchinson advanced by the majority is contradicted by a plain reading of the decision, by the Hutchinson minority opinion, and by Hutchinson's treatment by courts across the country. Third, the distinction the majority draws between Hutchinson and the case at bar is both incoherent and illogical. Distinguishing Hutchinson on the basis of no condom versus sabotaged condoms obscures the bright line of criminality established in Hutchinson. By arguing that the Hutchinson majority referred only to effective condom use, the majority in the instant case introduces needless uncertainty into the criminal law. It follows from the foregoing that the majority's attempt to distinguish Hutchinson, in substance, effects an overturning of that precedent. Hutchinson conclusively determined the meaning of "the sexual activity in question" under s. 273.1(1) as excluding all forms of condom use, not only condom sabotage.

As Hutchinson cannot be distinguished, it must either be applied or overturned. To assess whether Hutchinson can be overturned, it is necessary to examine the Court's horizontal stare decisis jurisprudence and articulate a framework for assessing whether the Court can overturn a prior precedent. According to the foundational doctrine of stare decisis — to stand by previous decisions and not to disturb settled matters — judges are to apply authoritative precedents and have like matters be decided by like. There are two forms of stare decisis: vertical and horizontal. Vertical stare decisis requires lower courts to follow decisions of higher courts, with limited exceptions. Horizontal stare decisis, which binds courts of coordinate jurisdiction in a similar manner, operates differently at each level of court. As the apex court, the Court's decisions often require the elaboration of general principles that can unify large areas of the law and provide meaningful guidance to the legal community and the general public. Such guidance is given effect in a variety of circumstances and for an indefinite period. Eventually, these frameworks may need to be revisited to ensure that they remain workable and responsive to social realities. The framework for horizontal stare decisis at the Court must take account of its institutional role and how that role relates to the rationale for stare decisis.

First, stare decisis promotes legal certainty and stability, allowing people to plan and manage their affairs. It serves to take the capricious element out of law and to give stability to a society. Second, it promotes the rule of law, such that people are subject to similar rules. Third, stare decisis promotes the legitimate and efficient exercise of judicial authority. Res judicata prevents re‑litigation of specific cases and stare decisis guards against this systemically, by preventing re‑litigation of settled law. Both doctrines promote judicial efficiency. Stare decisis also upholds the institutional legitimacy of courts, which hinges on public confidence that judges decide cases on a principled basis, rather than based on their own views. Stare decisis is foundational in that it requires that judges give effect to settled legal principles and depart from them only where a proper basis is shown. The criticisms that stare decisis is inherently conservative and that courts only adhere to it when the impugned precedent accords with their personal preference arise from the inconsistent application of stare decisis. Both criticisms are answered by its proper application.

Given the disparate nature of the Court's horizontal stare decisis jurisprudence and given the importance of stare decisis, it is necessary to set out a clear and coherent framework: the Court can only overturn its own precedents if that precedent (1) was rendered per incuriam, that is, in ignorance or forgetfulness of the existence of a binding authority or relevant statute; (2) is unworkable, or (3) has had its foundation eroded by significant societal or legal change.

To overturn a precedent on the ground that it was rendered per incuriam, a litigant must show that the Court failed to consider a binding authority or relevant statute and that this failure affected the judgment. This will be a rare basis to overturn a decision because the Court has the benefit of party and intervener submissions, lower court decisions on the issue, and rigorous internal processes, and because the standard to establish that a decision was decided per incuriam is high.

An unworkable precedent is one that is unduly complex or difficult to apply in practice and that undermines at least one of the purposes that stare decisis is intended to promote (legal certainty, the rule of law, judicial efficiency). Parties seeking to overturn precedent on this basis need to demonstrate that a precedent undermines the goals of stare decisis. It is not enough for litigants to assert baldly that a precedent has been applied in an uneven and unpredictable manner, creates uncertainty, or is doctrinally incoherent.

Where fundamental changes undermine the rationale of a precedent, this eroded precedent can be overturned by the Court. This can occur in two ways, through: (1) societal change (e.g., social, economic, or technological change in Canadian society), or (2) legal change, such as constitutional amendments, or, incrementally, when subsequent jurisprudence attenuates a precedent. With respect to societal change, the Court can overturn its decisions when fundamental changes to societal conditions undermine the decision's rationale, because the changes either render the concerns underlying the precedent moot or inconsistent with contemporary societal norms. Those seeking to overturn precedent based on societal change must demonstrate such change. As for legal change, the need to revisit precedents that conflict with the Constitution is clear but the point at which subsequent decisions have attenuated a precedent sufficiently so as to warrant overturning it is more difficult to define. The jurisprudence reveals a common theme: the precedent relies on principles or gives effect to purposes inconsistent with those underlying the Court's subsequent decisions.

All per incuriam decisions should be overturned. But an unworkable or eroded precedent may be upheld if overturning the decision would result in unforeseeable change or expand criminal liability. It should no longer be argued that a precedent should be overturned because it is (1) subject to judicial or academic criticism, (2) diverges from foreign jurisprudence, (3) is wrong in the eyes of some, (4) is a new or old precedent, or (5) was decided by a narrow majority. This framework for horizontal stare decisis is intended to apply to all statutory interpretation, common law, and constitutional precedents of the Court. However, differences exist between these types of precedents. In order for the Court to revisit a precedent based on statutory interpretation, it must be shown that the Court misconstrued the legislature's intent. As the meaning of a statute is fixed at the time of enactment, parties cannot argue that social change has altered the meaning of a particular provision. If the passage of time renders the statute inconsistent with contemporary social reality, it is the legislature that must remedy the statute's deficiencies.

Applying this horizontal stare decisis framework, Hutchinson meets none of the criteria for overturning precedent. First, it was not rendered per incuriam as it cannot be demonstrated that the Hutchinson panel ignored binding precedent, much less that the result would have been different had it considered an allegedly overlooked authority. Further, the failure to consider binding precedent would be grounds for overturning Hutchinson, not a basis for reading its ratio so narrowly that it may be distinguished. Second, Hutchinson is not unworkable. Far from creating uncertainty, the raison d'être of Hutchinson was to provide a bright line rule for interpreting the "sexual activity in question" under s. 273.1(1). The Hutchinson rule consigns all forms of deception involving contraception, including condom use or non‑use, to the fraud analysis under s. 265(3)(c). Post‑Hutchinson jurisprudence discloses no difficulty applying it. At most, it may be said that a tiny fraction of reviewing judges simply disagree with Hutchinson. Likewise, the academic criticism levied against Hutchinson suggests that it was wrongly decided but the existence of criticism alone is insufficient to justify departing from a precedent. Third, no foundational erosion has occurred with respect to Hutchinson. Any societal change that may have occurred since Hutchinson cannot change Parliament's legislative intent as authoritatively interpreted by the Hutchinson Court. The statutory meaning of "the sexual activity in question" set out in Hutchinson reflects Parliament's intent at the time of enactment. If the passage of time has rendered this statutory provision inconsistent with contemporary social reality, it is for the legislature to further study and to remedy any alleged deficiency. Finally, the Crown has not pointed to any legal change that could warrant overturning Hutchinson: no constitutional or jurisprudential developments post-Hutchinson that would attenuate its precedential value are mentioned. The Court's recent sexual assault jurisprudence does not purport to displace Hutchinson's clear and categorical interpretation of the "sexual activity in question" under s. 273.1(1) as excluding condom use.

Even if Hutchinson were unworkable or if its precedential foundation had eroded, there are at least two compelling reasons to uphold it. First, overturning Hutchinson would raise concerns regarding the retrospective expansion of criminal liability. Second, overturning Hutchinson may lead to unforeseeable consequences. Suddenly re‑orienting the law to expand the scope of consent would be a major legal change engaging potentially wide‑reaching policy issues. Hutchinson therefore governs the case at bar, such that the two‑step fraud vitiating consent analysis under s. 265(3)(c) is engaged, rather than the consent analysis under s. 273.1(1).

At the first step of the Hutchinson framework, there is some evidence that the complainant voluntarily agreed to the sexual activity in question. However, at the second step, there is also some evidence that the complainant's apparent consent may have been vitiated by fraud. On the low threshold of a no‑evidence motion, there was at least some evidence of dishonesty by omission and risk of deprivation through the risk of pregnancy. Accordingly, a new trial is required.

Cases Cited

By Martin J.

Distinguished: R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; referred to: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Monteleone, [1987] 2 S.C.R. 154; R. v. Charemski, [1998] 1 S.C.R. 679; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. L.T.H., 2008 SCC 49, [2008] 2 S.C.R. 739; R. v. Park, [1995] 2 S.C.R. 836; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Olotu, 2017 SCC 11, [2017] 1 S.C.R. 168, aff'g 2016 SKCA 84, 338 C.C.C. (3d) 321; R. v. Poirier, 2014 ABCA 59; R. v. Flaviano, 2014 SCC 14, [2014] 1 S.C.R. 270, aff'g 2013 ABCA 219, 309 C.C.C. (3d) 163; 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149; R. v. Chartrand, [1994] 2 S.C.R. 864; R. v. Gladue, [1999] 1 S.C.R. 688; R. v. Lupi, 2019 ONSC 3713; R. v. Rivera, 2019 ONSC 3918; R. v. Kraft, 2021 ONSC 1970; R. v. Hutchinson, 2011 NSSC 361, 311 N.S.R. (2d) 1; R. v. Hutchinson, 2013 NSCA 1, 325 N.S.R. (2d) 95; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609.

By Côté, Brown and Rowe JJ.

Applied: R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346; considered: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Bernard, [1988] 2 S.C.R. 833; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092; Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438; R. v. B. (K.G.), [1993] 1 S.C.R. 740; Teva Canada Ltd. v. TD Canada Trust, 2017 SCC 51, [2017] 2 S.C.R. 317; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; Tolofson v. Jensen, [1994] 3 S.C.R. 1022; McLean v. Pettigrew, [1945] S.C.R. 62; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Bowhey v. Theakston, [1951] S.C.R. 679; Deacon v. The King, [1947] S.C.R. 531; R. v. Beaulac, [1999] 1 S.C.R. 768; Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680; Ordon Estate v. Grail, [1998] 3 S.C.R. 437; R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746; Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23; Salomon v. Matte‑Thompson, 2019 SCC 14, [2019] 1 S.C.R. 729; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494; R. v. Oakes, [1986] 1 S.C.R. 103; Quinn v. Leathem, [1901] A.C. 495; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; R. v. Arcand, 2010 ABCA 363, 264 C.C.C. (3d) 134; R. v. A.E., 2021 ABCA 172, 466 D.L.R. (4th) 226, aff'd 2022 SCC 4, [2022] 1 S.C.R. 20; R. v. Brar, 2021 ABCA 146, 23 Alta. L.R. (7th) 1; R. v. P.D.C., 2021 ONCA 134, 401 C.C.C. (3d) 406; R. v. Nauya, 2021 NUCA 1; R. v. G. (N.), 2020 ONCA 494, 152 O.R. (3d) 24; R. v. Capewell, 2020 BCCA 82, 386 C.C.C. (3d) 192; R. v. Kwon, 2020 SKCA 56, 386 C.C.C. (3d) 553; R. v. Percy, 2020 NSCA 11, 61 C.R. (7th) 7; Charest v. R., 2019 QCCA 1401; R. v. Al‑Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237; P. (P.) v. D. (D.), 2017 ONCA 180, 409 D.L.R. (4th) 691; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579; R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Ahmad, 2020 SCC 11; R. v. C.P., 2021 SCC 19, [2021] 1 S.C.R. 679; Beamish v. Beamish (1861), 9 H.L.C. 274; Stuart v. Bank of Montreal (1909), 41 S.C.R. 516; R. v. Salituro, [1991] 3 S.C.R. 654; Canada (Attorney General) v. Hislop, 2007 SCC 10, [2007] 1 S.C.R. 429; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; R. v. Comeau, 2018 SCC 15, [2018] 1 S.C.R. 342; R. v. Sullivan, 2022 SCC 19, [2022] 1 S.C.R. 460; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440; R. v. Cuerrier, [1998] 2 S.C.R. 371; R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828.

Statutes and Regulations Cited

Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38, preamble, s. 1.

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(g), (i), 15.

Constitution Act, 1982.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 265(1)(a), (3), 271, 273.1 [ad. 1992, c. 38, s. 1], 273.2.

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APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Groberman and Bennett JJ.A.), 2020 BCCA 136, 388 C.C.C. (3d) 60, 63 C.R. (7th) 338, [2020] B.C.J. No. 791 (QL), 2020 CarswellBC 1201 (WL), setting aside the acquittal entered by Solomon Prov. Ct. J., 2018 BCPC 415, [2018] B.C.J. No. 7258 (QL), 2018 CarswellBC 4109 (WL), and ordering a new trial. Appeal dismissed.

Philip W. Cote, for the appellant.

John R. W. Caldwell and Janet A. M Dickie, for the respondent.

Dena Bonnet and Rebecca De Filippis, for the intervener the Attorney General of Ontario.

Christine Rideout, Q.C., for the intervener the Attorney General of Alberta.

Khalid Janmohamed, Robin Nobleman and Ryan Peck, for the interveners the HIV & AIDS Legal Clinic Ontario and the HIV Legal Network.

Joanna Birenbaum, for the intervener the Barbra Schlifer Commemorative Clinic.

Jessica Lithwick and Kate Feeney, for the intervener the West Coast Legal Education and Action Fund Association.

Frances Mahon and Harkirat Khosa, for the intervener the Women's Legal Education and Action Fund Inc.

Mark C. Halfyard and Kate Robertson, for the intervener the Criminal Lawyers' Association (Ontario).

Reasons for Judgment

The judgment of Moldaver, Karakatsanis, Martin, Kasirer and Jamal JJ. was delivered by

Martin J. —

I. Introduction

[ 1 ] This appeal raises an important legal question about consent and condom use in the context of an allegation of sexual assault. What analytical framework applies when the complainant agrees to vaginal sexual intercourse only if the accused wears a condom, and he instead chooses not to wear one? All parties and members of this Court agree that his negation of her express limits on how she can be touched engages the criminal law. The question is: should condom use form part of the "sexual activity in question" to which a person may provide voluntary agreement under s. 273.1(1) of the Criminal Code, R.S.C. 1985, c. C-46? Or alternatively, is condom use always irrelevant to the presence or absence of consent under s. 273.1(1), meaning that there is consent but it may be vitiated if it rises to the level of fraud under s. 265(3)(c) of the Criminal Code?

[ 2 ] I conclude that when consent to intercourse is conditioned on condom use, the only analytical framework consistent with the text, context and purpose of the prohibition against sexual assault is that there is no agreement to the physical act of intercourse without a condom. Sex with and without a condom are fundamentally and qualitatively distinct forms of physical touching. A complainant who consents to sex on the condition that their partner wear a condom does not consent to sex without a condom. This approach respects the provisions of the Criminal Code, this Court's consistent jurisprudence on consent and sexual assault and Parliament's intent to protect the sexual autonomy and human dignity of all persons in Canada. Since only yes means yes and no means no, it cannot be that "no, not without a condom" means "yes, without a condom". If a complainant's partner ignores their stipulation, the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated.

[ 3 ] Here, the complainant gave evidence that she had communicated to the appellant that her consent to sex was contingent on condom use. Despite the clear establishment of her physical boundaries, the appellant disregarded her wishes and did not wear a condom. This was evidence of a lack of subjective consent by the complainant — an element of the actus reus of sexual assault. As a result, the trial judge erred in granting the appellant's no evidence motion. Accordingly, I would dismiss the appeal and uphold the order of the Court of Appeal for British Columbia setting aside the acquittal and remitting the matter to the Provincial Court of British Columbia for a new trial.

II. Background

[ 4 ] The appellant, Ross McKenzie Kirkpatrick, was charged with the sexual assault of the complainant based upon events that occurred in March 2017. The allegation of criminal conduct relates only to the parties' second act of vaginal sexual intercourse in which Mr. Kirkpatrick admits he penetrated and ejaculated into the complainant without wearing a condom.

[ 5 ] The complainant was the only person to give evidence at trial. She testified that she was 22 years old at the time of the trial and that she and Mr. Kirkpatrick met online. After messaging back and forth, she thought he could be a potential sexual partner and they met in person to determine if they wanted to have sex with each other. In that meeting, they discussed themselves, past sexual partners and present sexual practices. The complainant made clear to Mr. Kirkpatrick that she would only agree to sex using condoms. While he said that he "hasn't used them", she "mentioned that I only have sex if I use condoms. It's the only way I feel like it's the safest for everyone involved" (A.R., vol. II, at p. 17). During that conversation, the appellant also agreed that it is safest for everyone involved to use condoms.

[ 6 ] A few days after this meeting, the complainant and Mr. Kirkpatrick arranged to meet at Mr. Kirkpatrick's home to have sex. They went to Mr. Kirkpatrick's bedroom. When Mr. Kirkpatrick "motioned for [her] to . . . get on his penis" (A.R., vol. II, at p. 20), she asked him if he had any condoms and told him that if he did not, she had brought some with her. When questioned at trial about why she had asked this, she replied that it was "[b]ecause I only have protected sex. And I ‑‑ and I wanted to have sex, so I wanted to make sure that he had a condom" (A.R., vol. II, at p. 22).

[ 7 ] Mr. Kirkpatrick told the complainant that he had condoms, and he put one on. It was dark in the room, but the complainant saw Mr. Kirkpatrick turn to his right and take a condom from his bedside table. She heard the wrapper open and saw Mr. Kirkpatrick making motions consistent with putting on a condom. They proceeded to have vaginal intercourse, with the complainant positioned on her back. Mr. Kirkpatrick asked the complainant where he could ejaculate, and she told him he could not ejaculate on her vagina or buttocks. Mr. Kirkpatrick removed the condom and ejaculated on the complainant's stomach.

[ 8 ] After they finished having sex in his room, they were in the bathroom together. While there, the complainant asked Mr. Kirkpatrick whether he wore a condom and he said he did. She asked to see it because the bedroom was dark and it was important to her that he had worn one. He went back to his room, retrieved it and showed it to her. She saw that the condom was stretched out and was reassured it had been used.

[ 9 ] The complainant fell asleep in Mr. Kirkpatrick's bed and was awakened to Mr. Kirkpatrick placing his erect penis against her buttocks. She pushed him away and saw him turn towards his bedside table — the same one from which he had previously retrieved a condom. She thought he put a condom on. She repositioned herself onto her stomach and Mr. Kirkpatrick penetrated her vaginally with his penis. After about a minute, he asked the complainant if this felt better than the last time. She agreed, believing that he was referring to the different position.

[ 10 ] After a period of time, they changed position and she was then on her back. When his penis fell out he asked her to guide it back into her, which she did. They continued to have sex until Mr. Kirkpatrick ejaculated inside her. It was not until this point that the complainant realized that during this second episode of intercourse he had not been wearing a condom.

[ 11 ] After the second episode of intercourse, the complainant asked Mr. Kirkpatrick whether he had worn a condom and he responded that he had not. She asked him "Why would you do that?" and he replied "I thought you would like it better". The complainant was very upset and asked him why he had done this. He took her to the hospital where she was given emergency contraception and tested for sexually transmitted infections.

[ 12 ] After the complainant gave her evidence, the appellant brought a no-evidence motion under s. 276 of the Criminal Code, arguing that the Crown failed to prove a lack of consent, which is an essential element of the actus reus of sexual assault.

A. Provincial Court of British Columbia, 2018 BCPC 415 (Solomon Prov. Ct. J.)

[ 13 ] The trial judge observed that the case "raises a difficult and important question of law about whether the law of sexual assault requires condom use as part of the sexual activity in question or whether the absence of condom use can ground liability only on the basis of fraud" (para. 4).

[ 14 ] The trial judge reviewed the decision in R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, and identified the holding that, at the first step of the consent analysis, the "sexual activity in question" is limited to "specific physical sex act[s]" and therefore excludes "conditions or qualities of the physical act, such as birth control measures" (para. 55). This means that the question of consent under s. 273.1(1) asks simply whether there was voluntary agreement to "the specific physical act of sexual intercourse" (para. 36).

[ 15 ] The trial judge concluded that because the complainant consented to vaginal intercourse, she "consented to all the physical acts of sexual relations that the parties engaged in" (para. 27), and there was therefore consent at the first step of the Hutchinson analysis.

[ 16 ] The trial judge then examined whether the second step of the Hutchinson analysis was engaged. This step involves whether the apparent consent was vitiated by fraud under s. 265(3)(c). The essential elements of fraud are: (1) dishonesty and (2) deprivation, specifically the risk of deprivation by a significant risk of serious bodily harm. The trial judge found that "there is no evidence of dishonesty" in this case because Mr. Kirkpatrick had "made no efforts to deceive [the complainant] into believing he had worn a condom" (para. 35). As a result, the trial judge granted Mr. Kirkpatrick's no-evidence motion and dismissed the sexual assault charge. Relying on Hutchinson, the judge concluded that based on the complainant's evidence, she had "consented to all the physical acts of sexual relations that the parties engaged in", despite the fact that no condom was used (para. 27). Thus, the only issue was whether there was any evidence of fraud vitiating consent. Fraud requires proof of the accused's dishonesty, which can include non-disclosure, and a deprivation in the form of significant risk of serious bodily harm from that dishonesty. The judge reasoned that, because Mr. Kirkpatrick had made no efforts to deceive the complainant into believing he had worn a condom, there was no evidence of dishonesty and therefore no evidence to support a finding of fraud.

B. Court of Appeal for British Columbia, 2020 BCCA 136, 63 C.R. (7th) 338 (Saunders, Groberman and Bennett JJ.A.)

[ 17 ] The Court of Appeal for British Columbia unanimously allowed the Crown's appeal, set aside the acquittal, and ordered a new trial, although the judges split on the reasoning as to which Criminal Code provision applied in examining consent: s. 273.1(1) or s. 265(3)(c).

[ 18 ] The trial judge granted Mr. Kirkpatrick's no-evidence motion and dismissed the sexual assault charge. Relying on Hutchinson, the judge concluded that based on the complainant's evidence, she had "consented to all the physical acts of sexual relations that the parties engaged in", despite the fact that no condom was used (para. 27). Thus, the only issue was whether there was any evidence of fraud vitiating consent. Fraud requires proof of the accused's dishonesty, which can include non-disclosure, and a deprivation in the form of significant risk of serious bodily harm from that dishonesty. The judge reasoned that, because Mr. Kirkpatrick had made no efforts to deceive the complainant into believing he had worn a condom, there was no evidence of dishonesty and therefore no evidence to support a finding of fraud.

[ 19 ] The Court of Appeal for British Columbia unanimously allowed the Crown's appeal, set aside the acquittal, and ordered a new trial, although the judges split on the reasoning as to which Criminal Code provision applied in examining consent: s. 273.1(1) or s. 265(3)(c).

[ 20 ] Groberman J.A. concluded that the trial judge had erred in finding that the complainant had consented to the sexual activity in question under s. 273.1(1). He held that Hutchinson should not be read as excluding important physical aspects — such as the wearing of a condom — from forming part of the sexual activity in question. Therefore, there was no consent in this case. Groberman J.A. did, however, agree with the trial judge's conclusion that there was no evidence to support that Mr. Kirkpatrick had attempted to deceive the complainant with respect to condom use so as to engage a fraud analysis under s. 265(3)(c).

[ 21 ] Bennett J.A. disagreed with Groberman J.A.'s reading of Hutchinson. In her view, the majority reasons in Hutchinson rejected the notion that condom use can form part of the sexual activity in question; instead, deception with respect to condom use must be analyzed under the fraud provision in s. 265(3)(c). On the facts of this case, however, she held the trial judge erred in concluding there was no evidence of fraud.

[ 22 ] Saunders J.A. agreed in part with both of her colleagues' reasons, but on different issues. She agreed with Groberman J.A.'s reading of Hutchinson, and in the alternative with Bennett J.A.'s conclusion that there was evidence of fraud.

III. Issues

[ 23 ] This appeal raises two questions. First, when a complainant makes their consent to sexual intercourse conditional on their partner wearing a condom, does failure to wear a condom result in "no voluntary agreement of the complainant to engage in the sexual activity in question" under s. 273.1(1) of the Criminal Code, or should failure to wear a condom be analyzed under the fraud provision in s. 265(3)(c)?

[ 24 ] Second, what is required to establish fraud, and was there some evidence of dishonesty by the appellant capable of constituting fraud vitiating consent under s. 265(3)(c) of the Criminal Code?

IV. Analysis

A. The Analytical Framework for Consent and Condom Refusal or Removal

[ 25 ] The consent provisions of the Criminal Code are found in ss. 273.1 and 265(3). The starting point and primary provision for determining whether there is consent to sexual activity for sexual assault offences is s. 273.1:

273.1(1) Subject to subsection (2) and subsection 265(3), "consent" means the voluntary agreement of the complainant to engage in the sexual activity in question.

[ 26 ] Section 273.1(2) specifies situations in which, despite the complainant's apparent agreement, there would be no consent to the sexual activity in question for the purpose of s. 271, 272 or 273, including when "the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity" (s. 273.1(2)(e)), and when "the complainant expresses, by words or conduct, a lack of agreement to engage in the activity" (s. 273.1(2)(d)).

[ 27 ] Section 265(3) sets out factors that vitiate apparent consent — including fraud under s. 265(3)(c): "the complainant submits or does not resist by reason of . . . fraud".

[ 28 ] In Hutchinson, the Court laid out a two-step framework for determining whether there is consent under these provisions. At the first step, the court must ask whether the complainant consented to the sexual activity in question under s. 273.1(1). At the second step, if the complainant did consent, or if her conduct raises a reasonable doubt about whether she consented, then the court must consider whether that apparent consent was vitiated by any of the factors in s. 265(3) or s. 273.1(2)(c), including fraud.

[ 29 ] In Hutchinson, McLachlin C.J. and Cromwell J. held for the majority that the "sexual activity in question" at the first step is "defined by reference to the specific physical sex act" (para. 54). The majority concluded that the "sexual activity in question" does not include "conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases" (para. 55). The majority therefore held that condom sabotage — the accused secretly poked holes in the condom — must be analyzed under the fraud provision of s. 265(3)(c) rather than as part of whether the complainant consented to the sexual activity in question.

[ 30 ] The question before this Court is whether the Hutchinson framework applies to the case at bar.

[ 31 ] I conclude that it does not. In this case, the complainant conditioned her consent to intercourse on condom use. In this circumstance, condom use forms part of the sexual activity in question under s. 273.1(1). Therefore, the absence of a condom means there is no consent, such that there is no need to analyze fraud.

[ 32 ] The following analysis proceeds in three parts. First, I address how the "sexual activity in question" must be defined at the first step of the Hutchinson framework. Second, I explain that condom use, when it is a condition of the complainant's consent, forms part of the sexual activity in question under s. 273.1(1). Third, I explain that the fraud analysis under s. 265(3)(c) does not apply to the circumstances of this case. Fourth, I address the application of the law to the facts of the case at bar, and specifically whether the trial judge erred in granting the no-evidence motion.

[ 33 ] I will begin with an overview of how the "sexual activity in question" must be defined.

(1) Defining the "Sexual Activity in Question"

[ 34 ] The key term "sexual activity in question" in s. 273.1(1) exists within a composite phrase that requires "voluntary agreement . . . to engage in the sexual activity in question". Parliament's intent as demonstrated by the text, context, and purpose of the sexual assault provisions must be sought and interpreted consistently with the Court's jurisprudence on consent and harmoniously with all parts of s. 273.1 and the overall legislative scheme.

[ 35 ] To understand what the "sexual activity in question" means, the starting point is a consideration of the Act to amend the Criminal Code (sexual assault), S.C. 1992, c. 38, which introduced the consent provisions now found in ss. 273.1 and 273.2 of the Criminal Code. The preamble to this legislation states that Parliament's purposes included: (i) "recognizing the trust and confidence that individuals have in the criminal justice system" and (ii) that the legislation "is intended to promote and help ensure the full protection of the rights guaranteed under sections 7 and 15 of the Canadian Charter of Rights and Freedoms". Section 15 of the Charter guarantees equality rights. Section 7 guarantees the right to life, liberty and security of the person. Bodily integrity and sexual autonomy are fundamental to s. 7.

[ 36 ] The legal meaning given to the "sexual activity in question" cannot be narrowly drawn or fixed for all cases — it is tied to context and cannot be assessed in the abstract, relates to particular behaviours and actions, and will depend on the facts and circumstances of the individual case. It will be defined by the evidence and the complainant's allegations, and will emerge from a comparison of what actually happened and what, if anything, was agreed to.

[ 37 ] Applying Hutchinson's focus on the "specific physical sex act", condom use may form part of the "sexual activity in question" under s. 273.1(1) because sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom. The physical difference is that intercourse without a condom involves direct skin‑to‑skin contact, while intercourse with a condom involves indirect contact. Logically and legally, direct and unmediated sexual touching is a different physical act than indirect and mediated contact; whether a condom is required is basic to the physical act.

[ 38 ] All principles of statutory interpretation compel the conclusion that sex with a condom is a different physical activity than sex without a condom for the purposes of the "sexual activity in question". It is the only interpretation that reads s. 273.1 as a whole and harmoniously with the Court's jurisprudence on subjective and affirmative consent.

[ 39 ] Section 273.1(2)(d) expressly reinforces that the clear rejection of a specific activity must be respected if consent is to have any meaning. Condom use cannot be irrelevant, secondary or incidental when the complainant has expressly conditioned her consent on it. Recognizing that condom use may form part of the sexual activity in question affirms that individuals have the right to determine who touches their bodies and how, is the only way to respect the need for a complainant's affirmative and subjective consent to each and every sexual act, and situates condom use at the definitional core of consent, where it belongs.

[ 40 ] The complainant's "no" to sexual intercourse without a condom cannot be ignored under either s. 273.1(1) or (2) because today, not only does no mean no, but only yes means yes. Further, voluntary agreement to sex with a condom cannot be taken to imply consent to sex without one as consent cannot be implied from the circumstances or the relationship between the accused and the complainant.

[ 41 ] In addition, recognizing that condom use may be part of the sexual activity in question fulfills Parliament's objective of giving effect to the equality and dignity‑affirming aims underlying the sexual assault prohibitions, responds to the context and harms of non‑consensual condom refusal or removal, and respects the restraint principle in criminal law. Non‑consensual condom refusal or removal is a form of sexual violence generating physical and psychological harms. The power dynamic it rests on is exacerbated among vulnerable women and among people with diverse gender identities and sex workers. Preventing a complainant from limiting consent to circumstances where a condom is used erodes the right to refuse or limit consent to specific sexual acts, leaving the law of Canada seriously out of touch with reality, and dysfunctional in terms of its protection of sexual autonomy.

[ 42 ] There are no vagueness or certainty concerns if condom use is seen as part of the sexual activity in question. Asking whether a condom was required and if so, whether one was used, has the necessary certainty to prevent over‑criminalization. While restraint is an important criminal law principle, it does not override Parliament's countervailing imperative of enacting sexual assault laws that respect the rights and realities of those subject to such violence.

(2) Why Fraud Does Not Apply in This Case

[ 43 ] While vitiation of consent by fraud under s. 265(3)(c) may still arise in other cases, it does not apply when condom use is a condition of consent. Instead of asking whether the complainant subjectively wanted the touching to take place, fraud shifts the focus to how the accused behaved and asks whether he attempted to, or succeeded in, deceiving the complainant about his lack of condom use. The requirement to prove deception and a deprivation misdirects the inquiry and creates gaps which leave many outside the law's protection in relation to sexual assault.

[ 44 ] Such an approach should not be adopted where the complainant has not agreed to sex without a condom because: (1) requiring proof of a deprivation fails to account for how, under the law of consent, all persons are able to decide to consent or not based on whatever grounds are personally meaningful to them; (2) the harms of non‑consensual condom refusal or removal go beyond a significant risk of serious bodily harm and are much wider than the risk of pregnancy and STIs; (3) the harm requirement for fraud means that certain people and certain types of sex would not come within the law's protection; and (4) proving a significant risk of serious bodily harm will likely entail a patronizing assessment of whether the harm the complainant experienced was significant enough to vitiate a consent that, in their mind, was never given.

(3) Distinguishing Hutchinson

[ 45 ] Hutchinson does not govern a case like the present one where consent turns on condom use and no condom was worn, and should therefore be distinguished. Hutchinson simply held that cases involving condom sabotage and deceit should be analyzed under the fraud provision rather than as part of the sexual activity in question in s. 273.1. Hutchinson was chiefly concerned with the delineation of deception under the criminal law and did not establish the sweeping proposition that all cases involving a condom fall outside s. 273.1 and can only be addressed when the conditions of fraud are established.

[ 46 ] The decision in Hutchinson is limited by its factual context and the majority's repeated references to the effectiveness of the condom, its sabotaged state and the accused's deception. In cases involving condoms, Hutchinson applies where the complainant finds out after the sexual act that the accused was wearing a knowingly sabotaged condom. If the complainant finds out during the sexual act that the condom was sabotaged, then they can revoke their subjective consent, the actus reus of sexual assault is made out, and there is no need to consider the fraud analysis.

V. Conclusion

[ 47 ] For these reasons, I would dismiss the appeal. In the result, I affirm the Court of Appeal's order setting aside the acquittal and ordering a new trial.

Joint Concurring Reasons

The joint concurring reasons of Côté, Brown and Rowe JJ. (Wagner C.J. concurring) were delivered by

Côté, Brown and Rowe JJ. —

I. Overview

[ 109 ] We agree with our colleague Justice Martin that the appeal should be dismissed and that a new trial is required. We disagree, however, that Hutchinson is distinguishable. Hutchinson squarely applies to the case at bar. It held, categorically, that condom use is not part of "the sexual activity in question" contemplated in s. 273.1(1) of the Criminal Code. When a person agrees to have sex on the condition that their partner wear a condom, but that condition is circumvented in any way, the sole pathway to criminal liability is the fraud vitiating consent analysis under s. 265(3)(c). Applying Hutchinson to the present case, there is some evidence that the complainant consented to the sexual activity in question, but a new trial is required to determine whether her apparent consent was vitiated by fraud.

[ 110 ] The case at bar is indistinguishable from Hutchinson for several reasons. First, the binding ratio decidendi of all the decisions of the Court, as an apex court, is necessarily wider than the majority acknowledges. When the question of law is one of statutory interpretation, the ratio of the binding precedent at issue must be understood in the context of the Court's role: to provide a clear and uniformly applicable interpretation of how a statutory provision is to be understood and applied by lower courts across Canada. Second, the interpretation of Hutchinson advanced by the majority is contradicted by a plain reading of the decision, by the Hutchinson minority opinion, and by Hutchinson's treatment by courts across the country. Third, the distinction the majority draws between Hutchinson and the case at bar is both incoherent and illogical. Distinguishing Hutchinson on the basis of no condom versus sabotaged condoms obscures the bright line of criminality established in Hutchinson. By arguing that the Hutchinson majority referred only to effective condom use, the majority in the instant case introduces needless uncertainty into the criminal law. It follows from the foregoing that the majority's attempt to distinguish Hutchinson, in substance, effects an overturning of that precedent. Hutchinson conclusively determined the meaning of "the sexual activity in question" under s. 273.1(1) as excluding all forms of condom use, not only condom sabotage.

[ 111 ] As Hutchinson cannot be distinguished, it must either be applied or overturned. Given the importance of the doctrine of stare decisis to the rule of law, and the institutional role of this Court as the apex court in Canada, we believe it is necessary to set out a clear framework for determining when prior precedents of this Court may be overturned.

[ 112 ] We conclude that the Court can only overturn its own precedents if that precedent (1) was rendered per incuriam, that is, in ignorance or forgetfulness of the existence of a binding authority or relevant statute; (2) is unworkable; or (3) has had its foundation eroded by significant societal or legal change.

[ 113 ] Applying this framework, Hutchinson meets none of the criteria for overturning precedent and must accordingly be applied to the present case. As a result, condom use is not part of "the sexual activity in question" under s. 273.1(1), and the two-step fraud vitiating consent analysis under s. 265(3)(c) is engaged.

[ 114 ] Applying Hutchinson to the facts of the present case, there is some evidence that the complainant voluntarily agreed to the sexual activity in question. However, there is also some evidence that her apparent consent was vitiated by fraud. A new trial is required.

II. Analysis

A. Hutchinson Applies to This Appeal

[ 115 ] The case at bar is, in all material respects, indistinguishable from Hutchinson. Both cases involve the same essential factual matrix: a woman who consents to sex on the condition that her partner wear a condom, and a male partner who circumvents that condition. In Hutchinson, the accused sabotaged the condom by poking holes in it. In the present case, the accused simply did not wear a condom. The majority contends that this factual difference is legally significant, but we disagree.

[ 116 ] The Hutchinson majority's holding was categorical: condom use is not part of "the sexual activity in question" under s. 273.1(1). This holding was not limited to cases of condom sabotage. The majority's analysis was concerned with the proper interpretation of the phrase "sexual activity in question" as it appears in s. 273.1(1), and its holding reflects an authoritative interpretation of that provision as a matter of statutory law. The majority held that "the 'sexual activity in question' does not include conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases" (para. 55). Condoms are, indisputably, birth control measures.

[ 117 ] The majority in the present case attempts to limit Hutchinson's ratio to cases of condom sabotage, relying on the fact that the Hutchinson majority referenced the "effectiveness" of the condom and the accused's "deception". But this reading of Hutchinson is strained and unpersuasive. The Hutchinson majority's references to the effectiveness of the condom and the accused's deception were made in the context of explaining why the case was not about whether the complainant agreed to the physical act of sexual intercourse — it was about whether the accused's deceptive conduct vitiated that agreement. The majority's core holding — that condom use is not part of the sexual activity in question — was stated in broad and unqualified terms.

[ 118 ] Moreover, the Hutchinson minority dissented precisely because the majority's interpretation was too broad and excluded condom use from the sexual activity in question in all circumstances. The fact that the minority dissented on this basis confirms that the majority's holding was indeed categorical.

[ 119 ] The majority's interpretation of Hutchinson is also inconsistent with how courts across Canada have applied that decision. In the years following Hutchinson, courts have consistently held that condom use is not part of the sexual activity in question under s. 273.1(1), regardless of whether the case involves sabotage or outright refusal to wear a condom.

[ 120 ] For these reasons, we conclude that Hutchinson squarely applies to the case at bar and cannot be distinguished. Accordingly, it is necessary to consider whether Hutchinson should be overturned.

B. Stare Decisis

[ 121 ] The doctrine of stare decisis is foundational to our legal system. It requires courts to follow their prior decisions and ensures legal certainty, stability and equality before the law. As the apex court, the Supreme Court of Canada occupies a unique position in the judicial hierarchy. Its decisions bind all lower courts and shape the development of Canadian law. The Court's horizontal stare decisis obligations — that is, the extent to which the Court is bound by its own prior decisions — are therefore of profound institutional importance.

[ 122 ] The Court has not previously articulated a clear and principled framework for determining when it may depart from its own precedents. The Court's jurisprudence on horizontal stare decisis has been inconsistent, with the Court at times departing from prior decisions without clearly articulating the basis for doing so. This inconsistency has generated uncertainty and undermined the rule of law.

[ 123 ] We believe it is necessary and appropriate to articulate such a framework. The framework we propose is informed by the rationale for stare decisis and by the Court's institutional role as the apex court in Canada.

[ 124 ] According to the foundational doctrine of stare decisis — to stand by previous decisions and not to disturb settled matters — judges are to apply authoritative precedents and have like matters be decided by like. There are two forms of stare decisis: vertical and horizontal. Vertical stare decisis requires lower courts to follow decisions of higher courts, with limited exceptions. Horizontal stare decisis, which binds courts of coordinate jurisdiction in a similar manner, operates differently at each level of court.

[ 125 ] As the apex court, the Court's decisions often require the elaboration of general principles that can unify large areas of the law and provide meaningful guidance to the legal community and the general public. Such guidance is given effect in a variety of circumstances and for an indefinite period. Eventually, these frameworks may need to be revisited to ensure that they remain workable and responsive to social realities. The framework for horizontal stare decisis at the Court must take account of its institutional role and how that role relates to the rationale for stare decisis.

[ 126 ] First, stare decisis promotes legal certainty and stability, allowing people to plan and manage their affairs. It serves to take the capricious element out of law and to give stability to a society. Second, it promotes the rule of law, such that people are subject to similar rules. Third, stare decisis promotes the legitimate and efficient exercise of judicial authority. Res judicata prevents re‑litigation of specific cases and stare decisis guards against this systemically, by preventing re‑litigation of settled law. Both doctrines promote judicial efficiency. Stare decisis also upholds the institutional legitimacy of courts, which hinges on public confidence that judges decide cases on a principled basis, rather than based on their own views. Stare decisis is foundational in that it requires that judges give effect to settled legal principles and depart from them only where a proper basis is shown.

[ 127 ] The criticisms that stare decisis is inherently conservative and that courts only adhere to it when the impugned precedent accords with their personal preference arise from the inconsistent application of stare decisis. Both criticisms are answered by its proper application.

[ 128 ] Given the disparate nature of the Court's horizontal stare decisis jurisprudence and given the importance of stare decisis, it is necessary to set out a clear and coherent framework: the Court can only overturn its own precedents if that precedent (1) was rendered per incuriam, that is, in ignorance or forgetfulness of the existence of a binding authority or relevant statute; (2) is unworkable, or (3) has had its foundation eroded by significant societal or legal change.

C. None of the Circumstances for Overturning Precedent Apply to Hutchinson

[ 129 ] Applying this horizontal stare decisis framework, Hutchinson meets none of the criteria for overturning precedent.

[ 130 ] First, it was not rendered per incuriam as it cannot be demonstrated that the Hutchinson panel ignored binding precedent, much less that the result would have been different had it considered an allegedly overlooked authority. Further, the failure to consider binding precedent would be grounds for overturning Hutchinson, not a basis for reading its ratio so narrowly that it may be distinguished.

[ 131 ] Second, Hutchinson is not unworkable. Far from creating uncertainty, the raison d'être of Hutchinson was to provide a bright line rule for interpreting the "sexual activity in question" under s. 273.1(1). The Hutchinson rule consigns all forms of deception involving contraception, including condom use or non‑use, to the fraud analysis under s. 265(3)(c). Post‑Hutchinson jurisprudence discloses no difficulty applying it.

[ 132 ] Third, no foundational erosion has occurred with respect to Hutchinson. Any societal change that may have occurred since Hutchinson cannot change Parliament's legislative intent as authoritatively interpreted by the Hutchinson Court. The statutory meaning of "the sexual activity in question" set out in Hutchinson reflects Parliament's intent at the time of enactment. If the passage of time has rendered this statutory provision inconsistent with contemporary social reality, it is for the legislature to further study and to remedy any alleged deficiency.

[ 133 ] Even if Hutchinson were unworkable or if its precedential foundation had eroded, there are at least two compelling reasons to uphold it. First, overturning Hutchinson would raise concerns regarding the retrospective expansion of criminal liability. Second, overturning Hutchinson may lead to unforeseeable consequences. Suddenly re‑orienting the law to expand the scope of consent would be a major legal change engaging potentially wide‑reaching policy issues. Hutchinson therefore governs the case at bar, such that the two‑step fraud vitiating consent analysis under s. 265(3)(c) is engaged, rather than the consent analysis under s. 273.1(1).

D. Application of Hutchinson to This Appeal

[ 134 ] Applying the Hutchinson framework, we conclude that there is some evidence that the complainant voluntarily agreed to the sexual activity in question under s. 273.1(1).

[ 135 ] The complainant agreed to engage in vaginal sexual intercourse with the appellant. She and the appellant engaged in vaginal sexual intercourse. There is therefore some evidence that she consented to the sexual activity in question.

[ 136 ] However, at the second step of the Hutchinson framework, there is also some evidence that the complainant's apparent consent may have been vitiated by fraud. We agree with Bennett J.A.'s conclusion that the trial judge misapplied the Mabior test for dishonesty. On the low threshold of a no-evidence motion, there was at least some evidence of dishonesty by omission and risk of deprivation through the risk of pregnancy.

[ 137 ] Accordingly, a new trial is required to determine whether the complainant's consent was in fact vitiated through fraud and, consequently, whether Mr. Kirkpatrick committed sexual assault within the meaning of s. 265(3)(c).

[ 138 ] We would add a final point on the subject of re‑trial. We agree with our colleague that one is warranted, in light of the legal error we have identified in the trial judge's fraud analysis. However, given the pending re-trial, we believe it is inappropriate for this Court to draw inferences in favour of either party from the evidence at the first trial. We take particular issue with our colleague's inference, at para. 58, that Mr. Kirkpatrick engaged in "stealthing", a term never put to the complainant or discussed at trial. We affirm that it is not our role at this preliminary stage to make any finding relevant to Mr. Kirkpatrick's culpability for the offence alleged, or to draw any inference that may impinge upon the presumption of his innocence at re‑trial.

III. Disposition

[ 310 ] For all the foregoing reasons, we would dismiss the appeal. In the result, we affirm the Court of Appeal's order setting aside the acquittal and ordering a new trial.

Appeal dismissed.

Solicitors

Solicitors for the appellant: Cote & Evans Trial Lawyers, Surrey.

Solicitor for the respondent: Attorney General of British Columbia, Vancouver.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Calgary.

Solicitors for the interveners the HIV & AIDS Legal Clinic Ontario and the HIV Legal Network: Lincoln Alexander School of Law, Toronto; HIV & AIDS Legal Clinic Ontario, Toronto.

Solicitors for the intervener the Barbra Schlifer Commemorative Clinic: Birenbaum Law, Toronto.

Solicitors for the intervener the West Coast Legal Education and Action Fund Association: Sugden, McFee & Roos, Vancouver; West Coast Legal Education and Action Fund Association, Vancouver.

Solicitors for the intervener the Women's Legal Education and Action Fund Inc.: Mahon & Company, Vancouver.

Solicitors for the intervener the Criminal Lawyers' Association (Ontario): Daniel Brown Law, Toronto; Markson Law, Toronto.

[^1]: Section 273.1 has been amended since the events in question in this appeal, but nothing turns on those amendments in this appeal (S.C. 2018, c. 29, s. 19(1) and (2)).