R. v. Hutchinson

The complainant agreed to sexual intercourse with her partner provided that he use a condom to prevent conception. Without the complainant’s knowledge, the accused poked holes in the condom and the complainant became pregnant. The trial judge found that the complainant had not consented to sexual intercourse without a condom and the accused was convicted of sexual assault. On appeal, the majority upheld the conviction on basis that the condom was an “essential feature” of the sexual activity. The main issue before the Supreme Court was whether the act of sabotaging a condom results in there being no consent under s.273.1(1) of the Criminal Code or should it be considered as a factor to vitiate consent under s.265(3)(c). The law prescribes a two-step test for determining whether there is consent to sexual activity. The first step requires the court to determine whether there was a voluntary agreement of the complainant to engage in the sexual activity in question and if the court finds that there was consent, the court then considers the possible presence of circumstances that would negate consent. The majority of the Supreme Court found that the consent was vitiated by fraud under s.265(3)(c).