While all judges agreed that Kirkpatrick must face a fresh trial, four of the nine judges reached that conclusion through a different legal route, asserting that the secret removal of condom amounts to fraud.
"Recognizing that condom use may form part of the sexual activity in question is also the only way to respect the need for a complainant's affirmative and subjective consent to each and every sexual act, every time," the judgment read. The complainant said she did not know that he did not use a condom the second time, and if she did, she would not have agreed to it. They had sex twice in one night in 2017, once with a condom and then again without one, though without the woman's knowledge, according to the complaint. Kirkpatrick met a woman online and then in person for a possible sexual relationship. Under Canadian law, sexual assault requires proof of a lack of consent to a particular sexual activity.Ĭondom use may form part of the sexual activity in Kirkpatrick's case because "sexual intercourse without a condom is a fundamentally and qualitatively different physical act than sexual intercourse with a condom," Martin wrote.
"Since only yes means yes and no means no, it cannot be that 'no, not without a condom' means 'yes, without a condom'," Justice Sheilah Martin wrote in the majority opinion.
The act of secretly removing a condom during sex, sometimes referred to as "stealthing," has come under legal scrutiny in countries that include Germany and Britain, both of which have convicted people for the act.