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Does failing to use a condom result in a lack of consent, or constitute fraud?\\xa0

In a recent decision, the Court of Appeal split three ways on how failing to use a condom should be analyzed.

The case they were dealing with involved two people who had only met in person on one occasion before they decided to spend the night together. The complaint performed fellatio, without asking the accused to wear a condom, but then asked him to put one on before engaging in intercourse. Later in the night, the couple had intercourse again. The complaint didn\\u2019t realize that the accused hadn\\u2019t used a condom. \\xa0

On the second occasion, when no condom was used, the accused was behind the complaint, and he asked her if it felt better. She said \\u201cyes\\u201d but thought the accused was talking about the position they were in.

At trial, the judge acquitted the accused, finding that there was no evidence that the complainant did not consent to the activity.

The Crown appealed the acquittal, and, in the Court of Appeal, all three judges ordered a new trial, but for different reasons.\\xa0

One judge concluded that the complaint hadn\\u2019t consented to intercourse without a condom. A second judge concluded that the complaint did consent, but that the consent was vitiated by fraud. The third judge concluded that there was both no consent and, if she was wrong in that conclusion, then there was also fraud.\\xa0

All three Court of Appeal judges struggled to interpret and apply a previous Supreme Court of Canada case where an accused used a condom that he had previously poked holes in. In that case, the complaint became pregnant. The Supreme Court of Canada concluded that, while the complainant had consented to the sexual activity, secretly poking holes in the condom constituted fraud and, as a result, there wasn\\u2019t consent as a matter of law.

Also discussed is a new practice directive form the BC Supreme Court that will permit accredited media to listen to telephone or video-based court appearances by phone so that COVID-19 doesn\\u2019t undermine the principle of an open court process.\\xa0

Finally, a court decision terminating a spousal support order is discussed. The ex-husband, who is a doctor, had paid $700,000 in spousal support over the past 26 years. He is 70 years old, and about to retire. The recipient ex-wife is also 70 years old but, despite having a university degree, and real-estate licence, amongst various other qualification, never held a job for more than a year, and never become economically self-sufficient.

The judge that terminated the support order pointed out that an \\u201cindefinite\\u201d support order doesn\\u2019t mean that it is permanent. It simply refers to an order for support without a time limit at the time it is made.

Follow this link for a transcript fo the show, and links to the cases discussed.\\xa0