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An Ontario criminal case made headlines last week, after a court found a man guilty of sexual assault after he refused to wear a condom during sex, having previously agreed to do so.

What Happened?

The accused and the victim were strangers until the began communicating through “Plenty of Fish”, and online dating service, in October 2017.

Through the dating service, they arranged for a sexual encounter to take place at the victim’s home on October 22, 2017. 

The morning of the encounter, the victim texted the accused that she had two rules: condoms were a must and “no means no”. The accused texted back that he was “totally Ok with that”. He also texted her that he had never had any illnesses and was totally clean. The victim indicated that she too was clean but that condoms were her form of birth control. 

The accused went to the victim’s home as planned and they engaged in consensual foreplay. 

However, the victim testified that what happened next was not consensual. There were two instances of sexual intercourse without a condom, despite her repeated requests that he use one. There was also an incident of forced oral sex after she had told him “did not want to”. She stated that afterward, they made small talk on her bed. She felt shaken and upset but had stopped crying and about 10 minutes later, the accused left. She explained she made small talk because she was afraid he would try again.

The next day, the accused went to an appointment with her counsellor and had a discussion about the encounter that lead her to go to the hospital to have a sexual assault kit as well as sexually transmitted infections and pregnancy tests performed. She took a few days afterward to decide what to do and on October 26, 2017, she made a complaint to the police.

The accused did not deny the oral sex and intercourse without a condom, but claimed that all events were consensual.He also contended the fact they laid side by side and had small talk after the sexual encounter supported his testimony that nothing untoward happened. He admitted to lying to the police during the investigation, saying that in those months there was a lot of “#metoo” material on the news and he was scared. His lawyer suggested the victim might have been motivated to fabricate her story because the accused did not spend the night with her.

Issues

At issue waswhether the victim consented.

The Decision

The court began by explaining that “sexual assault is an intentional application of force for a sexual purpose, without consent.” It then stated:

“This is a case of “he said she said” which raises issues of credibility and reliability. It is not a case of believing one person over the other. It is not a credibility contest. In assessing the evidence, if I believe the account of [the accused], I must acquit. If I don’t believe [the accused] but the evidence leaves me with a reasonable doubt, I must acquit. If the evidence does not leave me in doubt the offence occurred, I must assess whether the evidence proves the offence beyond a reasonable doubt.”

The court then stated that the accused’s evidence gave rise to serious issues regarding his credibility and reliability for a number of reasons, including that he lied to the police during the investigation. Additionally, the court stated:

“I find it improbable that the [victim] who used condoms as a method of birth control, agreed not to use a condom, particularly with someone she did not know.”

As a result, the court stated that it did not believe the accused’s claim the victim agreed to have sex without a condom.

After reviewing the victim’s testimony, the court found her evidence to be proof beyond a reasonable doubt that the accused committed a sexual assault against her by failing to wear a condom and engaging in sexual intercourse with her. It stated:

“I draw no adverse inference from the fact that the [victim] made small talk with [the accused] after their encounter or that she took a few days to consider whether or not to contact police; it would be inappropriate for me to do so and would invoke myths and stereotypes about how victims of sexual assault should act. It stands to reason that a [victim] might make small talk to keep things calm and avoid unwanted contact and it would not be unreasonable for a [victim] to take some time to consider whether or not to proceed with a complaint given the stress and scrutiny of intimate details of ones’ life involved in the criminal court process.”

Finally, the court stated that if there was any doubt that sex without a condom amounts to sexual assault, it found that the victim’s consent was vitiated by fraud under s. 265(3) of the Criminal Code, stating:

“In my view, [the accused] lead the [victim] to believe he would wear a condom as he had previously agreed to do so and at the last minute he penetrated her without a condom telling her it would be ok. I find his failure to wear a condom increased the [victim]’s risk of pregnancy and constitutes a significant risk of bodily harm […]. Her consent was therefore vitiated by this action.”

As a result, the court found the accused guilty of sexual assault.

Get Advice

Sexual assault is one of the most serious criminal offences in Canada and is treated as such. Almost every sexual assault conviction will result in jail time (including life in prison in the most serious cases), registration in a national DNA bank, and registration on both provincial and national sex offender registries. In certain circumstances, convictions also result in mandatory minimum sentences.

Due to the complex and extremely emotional nature of sexual assault accusations and charges, it is imperative to retain a criminal lawyer with significant experience defending such matters. At Campbell Bader LLP our skilled criminal defence lawyers have been providing a full range of criminal law services to clients in Mississauga and areas west of Toronto for almost 20 years. We have successfully defended clients against even the most serious sexual assault and related charges.  Acquittal is always our goal. Contact us online or at 905-828-2247 to learn how we can help.