Lack of consent, or possibly fraud, for not using a condom and an end to spousal support payments when an ex-wife doesn’t become self sufficient after 26 years


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

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’t realize that the accused hadn’t used a condom.

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 “yes” 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.

One judge concluded that the complaint hadn’t 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.

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’t 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’t undermine the principle of an open court process.

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 “indefinite” support order doesn’t mean that it is permanent. It simply refers to an order for support without a time limit at the time it is made.


Automated transcript of the show:


Legally Speaking May 14, 2020

Adam Stirling [00:00:00] It’s time, though, for Legally Speaking, you’re on CFAX 1070, joined as always by Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael. How are you?


Michael T. Mulligan [00:00:08] I’m doing very well. Thank you very much for having me.


Adam Stirling [00:00:11] Interesting times in British Columbia’s courts as we continue to weather COVID-19.


Michael T. Mulligan [00:00:15] Yes, it doesn’t seem to be slowing the Court of Appeal down one bit. They’re back in business by Zoom and are issuing judgments at a pretty good clip. One of the cases that was just released yesterday, I think is an important one for people to know about, and it raises some important adult issues in terms of consent to sexual activity and how that, how that works. So, I think this is an important case that we may hear more of in the future. The particular fact pattern that was being considered, at trial and on this appeal, were to people who met online on a dating service. They had met once in person and then they agreed to meet up again a few days later, went over to the accused’s house where the complainant indicated that she was consenting to sexual activity, but wanted there to be a condom used. That was used on a first occasion and then in the second case and in the middle of the night, the two rolled over and engaged in further activity and on that occasion, it would appear that no condom was used. When the complainant realized that she became upset and it led to a charge of sexual assault. At trial, the accused was acquitted on what’s called a no-evidence motion, which is something of worth pointing out.


Adam Stirling [00:01:52] mmhmm.


Michael T. Mulligan [00:01:52] The way in no evidence motion would work; is it the end of the Crown’s case if the accused alleges that there is no evidence on a critical point, for a conviction, a judge can at that point equip the accused without putting the accused of the burden of deciding whether they wish to call evidence. Here, that’s that sort of application was made. And the argument was, look, the complainant consented to the activity and the fact that the condom wasn’t used on the second occasion didn’t vitiate that consent. And the argument was there was no fraud engaged in here. The person the accused had claimed that he was using the condom. He simply didn’t. The judge granted the no evidence motion. And so, the accused was acquitted and off the case went to the Court of Appeal. And that’s the decision which came out yesterday. Now, the Court of Appeal, is a three-judge panel, interestingly, was one man and two women, which is interesting. I haven’t done a current count, but for some time we had a majority of women on the Court of Appeal, which was, I think, a good and interesting thing.


Adam Stirling [00:02:58] Mmhmm


Michael T. Mulligan [00:03:00] The court was struggling with a case from a few years ago from the Supreme Court of Canada called Hutchinson. And that case had a straightforward but very interesting fact pattern that involved consent to sexual activity on the condition that a condom be used, where the accused in that case had poked holes in the condom, making it completely ineffective, causing the complainant to become pregnant and eventually a conviction for aggravated sexual assault. That went all the way to the Supreme Court of Canada, and the Supreme Court of Canada found that that activity of poking the holes in the condom had not vitiated consent…the accused that the complaint in that case had consented to the activity. But that action on the facts of that case amounted to fraud. And there’s a provision in the criminal code that says that if you get consent based on fraud, that doesn’t count as consent. And so, it was on that basis that the accused was convicted, in Hutchinson. So the Court of Appeal yesterday was struggling to apply that decision to the fact pattern, the recent one and one of the judges found that he thought he could distinguish Hutchinson, that old, that Supreme Court of Canada case, with the holes being poked. And he concluded that this was different from that and that the agreement to engage in the activity was fundamentally different when the condom was not used. And therefore, he found that there had been no consent, to the activity, and that there ought to have been a or there could have been a conviction on that basis. So, he would send the matter back to a new trial. The next judge from the Court of Appeal, she took a different take. She said, no, you can’t really separate out that decision from the Supreme Court of Canada from the fact pattern in the current case. And there was consent to the activity. That’s what she concluded. However, she found that that should have been analyzed pursuant to that special, that provision that deals with fraud. And her take on it was that fraud didn’t require what the trial judge thought was required, that these sort of passive act of not informing the person of the failure to use the condom could amount to fraud. And the case ought to go back for a retrial on that basis. So, a completely different legal theory of it. The third Court of Appeal judge found that either of these things could be so, and so, her take on it was that she thought it could be that this amounted to not being consent. But if that wasn’t so, then it could be fraud because each of the other two first judges thought the alternative theory didn’t apply. So, all of this is to say to demonstrate just how complicated some of these difficult human issues can be. And I think the real takeaway for people is that there needs to be, this is important, affirmative agreement and consent to sexual activity. And particularly in some of these relationships like this one, which you seem to have a length of two or three hours.


Adam Stirling [00:06:23] Yes.


Michael T. Mulligan [00:06:23] There should be some particular caution used to make sure that somebody you’re engaged in this sort of activity with is genuinely consenting to exactly what is going on. And well, it may not be realistic to expect people are going to have contracts and so on and all of these human affairs.


Adam Stirling [00:06:44] Yes.


Michael T. Mulligan [00:06:45] Particularly in these sorts of short relationships. If you could characterize it in that way, there should be particular effort made to ensure that the people involved are clearly agreeing to, and know what they’re agreeing to, and not to be assuming, that the other person is probably okay with this or probably okay with that. In this case, the evidence was that the accused had said something like, does that feel better on the second occasion to which the complainant responded, Yes. But of course, it sounds like there just a fundamental misunderstanding as to what the individuals were trying to communicate to each other. So, well, there’s a lot of legal complexity here in terms of, you know, what is consent? You know, when can that be vitiated by fraud? The big takeaway for people is make sure that there’s clarity, because if not, you may find yourself in the court of appeal. And it would not be at all surprising if this case at some point wound up in the Supreme Court of Canada, given this fundamental split on the Court of Appeal.


Adam Stirling [00:07:59] Yes.


Michael T. Mulligan [00:07:59] About that previous Supreme Court of Canada case meant.


Adam Stirling [00:08:02] I was going to ask and the reasons for judgement, we know that it is the majority of the court that prevails in terms of having an appeal either granted or dismissed. But how much weight is put on the reasons that are attached to the dissenting side of the court that loses? Because ultimately that is not the argument or the reasoning that prevailed. And yet it is put into the record and is available to everyone to read, nonetheless. So, what weight do those words have?


Michael T. Mulligan [00:08:27] Well, that’s a great question and a great question, particularly in the context of this case.


Adam Stirling [00:08:31] Yes.


Adam Stirling [00:08:31] Now, in this case, from the Court of Appeal, all three judges agreed on the result. They all agreed the appeals should be allowed. So, nobody was really dissenting.


Adam Stirling [00:08:40] Okay


Michael T. Mulligan [00:08:40] But they all agreed for slightly different reasons, which can make things a little more complicated for those of us in the business when you’re trying to predict, well, you know, what is the state of the law?


Adam Stirling [00:08:49] Yeah.


Michael T. Mulligan [00:08:50] What exactly is meant here?


Michael T. Mulligan [00:08:51] And that’s challenging. And one of the reasons or one of the things that the judges were debating and their reasons here is that the proper interpretation of that previous Supreme Court of Canada case with the holes being poked in the condom. And that case had a majority decision and a dissent. The dissent in that case was provided some language about what the majority was talking about and why they were dissenting from it. And that formed part of the analysis that the judges and the Court of Appeal here were using to try to interpret. Well, what did the Supreme Court of Canada mean? You know, and is there any light that can be shown between the concept of somebody using an intentionally damaged condom versus using not using one at all?


Adam Stirling [00:09:45] Yes.


Michael T. Mulligan [00:09:45] And, you know, how can that be distinguished from circumstances like, well, what if somebody uses one that just turned out to be defective, but not intentionally? So, does that eliminate consent? And so when you start drilling down at some of those issues, it can be a challenge, but dissenting opinions like in this case, both helped inform what the majority meant and you can also see that judges are alive to sort of how that how the their dissent or minority opinion might have an impact, should the matter be appealed further. Like, for example, the third judge from the Court of Appeal here found that she would have, both, been satisfied that there was no consent and that this could amount to fraud, which was different from the other two. One, thought, well, this is only a lack of consent, but not fraud. The second judge thought, well, this is fraud, but doesn’t interfere with consent because of what the Supreme Court of Canada has said. And so that third judge was of the view that either of those things could apply. And that, of course, might be an eye too well, what happens with this thing down the road if there’s a new trial, a conviction on one theory or the other? And then eventually the case goes off to the Supreme Court of Canada.


Adam Stirling [00:11:02] Interesting.


Michael T. Mulligan [00:11:02] So defence can be important. We saw it here both in terms of interpreting the majority view and judges with an eye to, you know, how might this be looked upon down the road? So, they matter.


Adam Stirling [00:11:14] Michael Mulligan with Mulligan Defence Lawyers helping us understand the latest legal issues in the news. Coming up in just a moment, B.C. Supreme Court permitting reporters to call in and listen to proceedings to maintain an open court in these COVID-19 times. We’ll elaborate upon that right after this break.




Adam Stirling [00:11:30] We continue with Legally Speaking Michael Mulligan for Mulligan Defence Lawyers. Michael, the B.C. Supreme Court permitting reporters to call him and listen to proceedings in these unprecedented times of COVID-19.


Michael T. Mulligan [00:11:41] Yes, indeed. So, all of the courts in British Columbia, Provincial Court, the Supreme Court, and the Court of Appeal of all taking steps to try to open up as many proceedings as are possible safely. Court of appeals using Zoom, the provincial court is going to start using Microsoft Teams and has been conducting sentencings where possible by telephone and the B.C. Supreme Court, it frankly has some of the most challenging things to deal with, because that, of course, would be the court where things like jury trials would proceed, which are at this point still not possible. However, the BC Supreme Court is opening up to hear by video or telephone link in addition to urgent criminal matters, some family and civil cases that are also urgent. And one of the important things that have to be maintained and this is both a constitutional requirement for criminal trials, you have a fair and public hearing. But an important principle for all court proceedings, is that they should be open and transparent, public, reporters should be able to scrutinize what we’re doing up there every day. No good comes of secret justice. And so, to that end, the BC Supreme Court has just announced a protocol whereby, accredited media, will be able to connect to listen live to proceedings in court by telephone and some rules surrounding that. One interesting thing for listeners to know about is that, while media are permitted to record proceedings to ensure the accuracy of their reporting, they’re not permitted to play the recordings. Like you could have a tape recorder if you’re an accredited reporter to record something and make sure that it’s, or your phone probably these days, make sure that you’re accurately reporting on something.


Adam Stirling [00:13:40] Yes.


Michael T. Mulligan [00:13:40] Those rules will still apply. So, you know, all of this relies on the professionalism of all the people involved. But it’s another example of the court trying to accommodate the current reality while maintaining some of those important principles, like making sure the court process is open and we’re not up there doing things in secret. So that’s the latest COVID-19 Protocol change from the BC Supreme Court. Reporters will be able to call in and listen to proceedings and keep us all honest up there.


Adam Stirling [00:14:14] It is fascinating, though, that the rules permitting the use of that recording are limited to verification purposes and not broadcast. We still haven’t passed that threshold, it would seem.


Michael T. Mulligan [00:14:24] You’re right. And I think there is a scope for perhaps reconsidering that. The concern or things like interfering with witnesses who are feeling free to give evidence, not wanting people to be sort of, you know, grandstanding or things of that sort. So, you know, there are some certainly some considerations there. I would tend to fall on the side of allowing more openness and recording and playing of those things as long as it can be done in a way that doesn’t disrupt the proceedings. And we’ve seen for many years how that works, at least in the Supreme Court of Canada, having an automated video system, they’re recording the proceedings. Mind you, they’re not dealing with witnesses and so on. I think some of the concerns would be things like, you know, intimidated witness testifying in a trial with the video camera pointing at them, might feel less free to give their evidence. But, you know, all of these things are weighing, and we need to weigh them up against that really important principle of openness and transparency. And I tend to think the more of that we have, the better off we are.


Adam Stirling [00:15:32] Yes, it’s a fascinating situation because in theory, any person may attend the courthouse in person and observe those proceedings. But in a practical sense, all people cannot because there is limited seating in the gallery in any courthouse. And there are many, many more people out in the wide world than there are seats. So, we never have real true broadcast, even though any person may choose to attend. And yet, if we made it electronically available, that practical limitation disappears.


Michael T. Mulligan [00:15:57] Yeah, you’re quite right. And I should say, all courts are now equipped with sophisticated digital audio recording systems. And so, if there was an inclination to or a decision made to permit people to listen to those things either live or the end of the day, that could be accomplished without having to spend money on equipment. There are already audio recordings the judges can use to, you know, listen to evidence again, if needed to review a point or play things back for a jury if they ask for a particular piece of evidence to be replayed. And that same system is used when transcripts are ordered. So, it wouldn’t take much from a technological, technology point of view if there is a decision made that we should permit, permit that to be listened to by the public. So, I think that is something that needs consideration. And maybe in the COVID-19 environment, that’s the sort of creative change we might see.


Adam Stirling [00:16:56] Indeed, we have three minutes left in our segment today, Michael. We have another two stories that we could discuss. Well, we’d like to focus on one or the other. We’d like to do both.


Michael T. Mulligan [00:17:03] I think probably the family one has the most relevance to people. So, I think that’s one that I think is worth spending a couple of minutes on.


Adam Stirling [00:17:10] Indeed.


Michael T. Mulligan [00:17:11] So this was a decision under the BC Supreme Court, and it was an application to terminate spousal support. And in this case, the parties involved were just short of 70 years of age when this application was made. And the person who had been paying spousal support had been paying the spousal support for more than 20 years. And that person was a doctor, person receiving it, had a real estate license, but earned much less. Ultimately, the application to terminate the payment of spousal support was permitted. And some of the things that the court reviewed there, I think are important principles for people to be aware of. The court reviewed the fact that the person had received some $700,000 in spousal support over the preceding 20 years and also made the point that even though the person was now almost 70, who was receiving it. She had made very little effort over the preceding 20 plus years to get herself in a position of economic self-sufficiency. And so, I think the takeaway for people who are recipients of spousal support is that you can’t necessarily count on that going on forever. Depending on the circumstances of the parties, it may well be an expectation that a person eventually become economically self-sufficient. And in this case, where the relationship ended 26 years earlier and the person receiving the payments had just not stayed in a job or became, become economically self-sufficient over that period of time. The change of circumstances of the person paying, retiring and the long time that had gone by was sufficient to see that cancelled. And so, I think the important takeaway for people would be, if you’re the recipient of those payments, don’t necessarily count on them going on forever and funding your retirement. At some point, the expectation may be that you need to be economically self-sufficient. And that was the outcome in this particular case.


Adam Stirling [00:19:17] Michael Mulligan for Mulligan Defence Lawyers, we appreciate your knowledge and insight as always. Michael, thank you as always for your time. We’ll talk again next week.


Michael T. Mulligan [00:19:24] Thank you so much. I look forward to it.


Adam Stirling [00:19:26] Have a great day. Bye now.


Automatically Transcribed on May 14, 2020 – MULLIGAN DEFENCE LAWYERS