SCC hears submissions on meaning of consent in sexual assault law

Sexual activity with and without a condom are distinct acts that require separate consent, the Women’s Legal Education and Action Fund (LEAF) argued before the Supreme Court of Canada when it heard submissions in R. v. Kirkpatrick.

The case addresses the boundaries of consent to sexual activity under Canada’s criminal law. Consent, as defined in the Criminal Code, is “the voluntary agreement of the complainant to engage in the sexual activity in question.”

Frances Mahon, founder of Mahon & Company, and Kirat Khosa, an associate at the firm, represented LEAF in the intervention. The two lawyers contended that including condom use in the definition of “sexual activity in question” would promote substantive equality for equity-seeking groups such as women, girls, trans, non-binary persons and others who experience intersecting marginalization and gendered power imbalances. Doing so would affirm and safeguard complainants’ dignity and autonomy and would appropriately limit the criminal legislation’s scope, they argued.

The complainant in this case alleged that she told the accused to use a condom during sexual intercourse, but that the accused used a condom the first time but not the second time. The issue was whether sexual activity would be considered consensual if the person asked to use a condom did not comply.

Requesting condom use is an essential element of exercising one’s sexual autonomy, said Rosel Kim, LEAF’s staff lawyer, in a news release.

“Excluding condom use from the definition of ‘sexual activity in question’ in the consent provision of the Criminal Code will exacerbate inequality for marginalized groups who are more likely to experience sexual violence, such as Black, Indigenous, and racialized women, girls, and gender-diverse people,” Kim added in the news release.

LEAF’s arguments for the intervention were guided and supported by a case committee comprising Joshua Sealy-Harrington, assistant professor in the Lincoln Alexander School of Law; Adriel Weaver, associate at Goldblatt Partners LLP; and Andrea Krüsi, assistant professor in the University of British Columbia’s Department of Medicine.

LEAF is a national not-for-profit organization that promotes gender equality in Canada through its law reform, public legal education and litigation efforts, and has intervened in over 100 cases. These cases, LEAF says, have assisted in shaping the Canadian Charter of Rights and Freedoms, addressed the issue of violence against women and gender diverse people, fought against discrimination in the workplace, enabled access to reproductive freedoms, and improved maternity benefits, spousal support and pay equity rights.