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For a plain-language summary of the decision (provided by the Supreme Court of Canada), see “Headnote” below “Timestamps”.

Timestamps:

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

I: Introduction: 0:00:25, paragraphs 1 to 3

II: Background: 0:02:43, paragraphs 4 to 17

II(A): Provincial Court of British Columbia, 2018 BCPC 415 (Solomon Prov. Ct. J.): 0:08:44, paragraph 18

II(B): Court of Appeal for British Columbia, 2020 BCCA 136, 63 C.R. (7th) 338 (Saunders, Groberman and Bennett JJ.A.): 0:09:30, paragraphs 19 to 22

III: Issues: 0:11:02, paragraphs 23 to 24

IV: Analysis: 0:11:39

IV(A): The Analytical Framework for Consent and Condom Refusal or Removal: 0:11:42, paragraph 25

IV(A)(1): The Offence of Sexual Assault: 0:12:38, paragraphs 26 to 35

IV(A)(2): The Arguments of the Parties: 0:20:15, paragraphs 36 to 38

IV(A)(3): Interpreting the “Sexual Activity in Question” in Section 273.1(1): 0:22:27, paragraphs 39 to 75

IV(A)(4): The Hutchinson Decision Is Not Determinative: 0:48:24, paragraphs 76 to 98

IV(A)(5): Summary and Application: 1:04:12, paragraphs 99 to 106

IV(B): Evidence of Fraud: 1:07:54, paragraph 107

V: Conclusion: 1:08:09, paragraph 108

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

I: Overview: 1:08:28, paragraphs 109 to 118

II: Analysis: 1:12:55

II(A): Hutchinson Applies to This Appeal: 1:12:57, paragraphs 119 to 120

II(A)(1): This Court’s Decisions Are Intended to Apply Broadly: 1:14:25, paragraphs 121 to 132

II(A)(2): Properly Interpreted, Hutchinson Governs This Appeal: 1:22:54, paragraphs 133 to 159

II(A)(3): Our Colleague Attempts to Distinguish Hutchinson On Grounds That Are Incoherent and Illogical: 1:40:50, paragraphs 160 to 167

II(A)(4): Our Colleague’s Misreading of Hutchinson Effects an Overturning of Precedent: 1:47:59, paragraphs 168 to 170

II(B): Stare Decisis: 1:49:18, paragraphs 171 to 173

II(B)(1): The Doctrine of Stare Decisis: 1:50:43, paragraphs 174 to 181

II(B)(2): The Rationale for Stare Decisis: 1:54:07, paragraphs 182 to 189

II(B)(3): Criticisms of Stare Decisis: 1:57:14, paragraphs 190 to 195

II(B)(4): Circumstances in Which This Court May Overturn Its Own Precedent: 1:59:32, paragraphs 196 to 266

II(B)(5): Conclusion: Stare Decisis: 2:28:07, paragraphs 267 to 269

II(C): None of the Circumstances for Overturning Precedent Apply to Hutchinson: 2:29:10, paragraphs 270 to 271

II(C)(1): Hutchinson Was Not Rendered Per Incuriam: 2:30:11, paragraphs 272 to 274

II(C)(2): Hutchinson Is Not Unworkable: 2:32:23, paragraphs 275 to 278

II(C)(3): There Is No Foundational Erosion Undermining Hutchinson: 2:36:31, paragraphs 279 to 283

II(C)(4): Even if Hutchinson Could Be Overturned, This Court Should Exercise Its Discretion to Uphold It: 2:38:50, paragraphs 284 to 286

II(C)(5): Conclusion on Horizontal Stare Decisis Applied to Hutchinson: 2:41:17, paragraph 287

II(D): Application of Hutchinson to This Appeal: 2:41:39, paragraph 288

II(D)(1): The Two-Step Analysis of Consent Mandated by Hutchinson: 2:42:11, paragraphs 289 to 305

II(D)(2): Conclusion on the Two-Step Consent Framework: 2:49:57, paragraphs 306 to 309

III: Disposition: 2:51:21, paragraph 310

Headnote provided by the Supreme Court of Canada:

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, itpromotes the rule of law, such that people are subject to similar rules. Third, stare decisis promotesthe 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.

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