Surrey provincial courthouse. (Photo: Tom Zytaruk)

Appeal court overturns Surrey sexual assault acquittal, orders new trial

Appeal court judge says Surrey court failed to consider evidence of ‘passive dishonesty’

If a person consents to have sex on condition their partner wears a condom, but their partner does not wear one, has a crime been committed?

A man who was acquitted of sexual assault by a Surrey provincial court judge will be tried once again after B.C.’s Court of Appeal overturned that verdict.

The trial judge had found no evidence of active deception.

“The question of this appeal is a simple one,” Justice Harvey Groberman explained. “Where a person consents to engage in sexual intercourse on condition that their sexual partner wear a condom, can that partner ignore the condition without being subject to criminal liability?”

Ross McKenzie Kirkpatrick was charged with sexual assault after having sex with a woman he’d met online without wearing a condom, which the court heard had been a condition of her consent.

They had sex twice, the court heard, and on the second occasion the accused, unbeknownst to the complainant, didn’t wear a condom. There is a publication ban on information that could identify the complainant.

The Crown argued before the trial judge that the consent was vitiated, or destroyed, by fraud but the judge found no evidence of fraud. The Crown appealed his decision, successfully.

Groberman found that the trial judge misinterpreted a Supreme Court of Canada case which he said, if “properly” interpreted, allows one to “validly limit their consent to sexual intercourse by insisting that a condom be used.”

The lower court judge’s interpretation, Groberman stated in his reasons for judgment, “would leave the law of Canada seriously out of touch with reality, and dysfunctional in terms of its protection of sexual autonomy.”

READ ALSO: Surrey criminal’s dangerous offender designation set aside by appeal court

READ ALSO: Appeal court orders new trial for Surrey chiropractor who was convicted of fraud

READ ALSO: Supreme court upholds Surrey judge’s no-bail order for man accused of obstructing cops

Groberman said sexual intercourse with a condom is “not the same sexual activity as sexual intercourse without a condom” and that the trial judge was “wrong in giving effect to the no-evidence motion.”

“The fact that he had, at an earlier time, agreed to use a condom is not evidence of fraud. A failure to keep a promise is not, in and of itself, fraudulent — if it were, every breach of contract would amount to a fraud,” Groberman said. “I conclude that the judge made no error in finding that there was no evidence of fraud on the part of the accused in this case.”

But, he added, “as there was evidence indicating that the accused engaged in sexual intercourse without a condom, knowing that the complainant required him to wear one, the judge erred in granting the no-evidence motion.

“In the result, I would set aside the acquittal and remit the matter to the provincial court for a new trial.”

While Appeal Court Justice Elizabeth Bennett found the trial judge was correct to find no evidence the complainant didn’t voluntarily agree to “the sexual activity in question here,” she also found there was evidence her agreement to sexual activity “was obtained by fraud and the trial judge erred in holding otherwise.

“In concluding that there was no evidence of agreement to the sexual activity of fraud that vitiated consent, the trial judge made findings of fact in relation to the element of dishonesty,” Bennett decided. “Therefore, in my view, there must be a new trial before a different judge. I would allow the appeal and order a new trial.”

“In my view, the trial judge erred in law in failing to apply the correct test for fraud, and failing to consider evidence of passive dishonesty,” Bennett said.

Justice Mary Saunders also weighed in.

“In my view, there was some evidence of fraud which obviated a no-evidence motion,” Saunders said. “For this reason, also, I consider the appeal should be allowed and the matter remitted to the Provincial Court for a new trial.”



tom.zytaruk@surreynowleader.com

Like us on Facebook and follow Tom on Twitter

CourtCriminal JusticeSurrey

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Comments are closed

Just Posted

Southridge students raise $5,600 for hospital meal program

GoFundMe campaign funds two months of meals at Peace Arch Hospital

Surrey kids get cooking during free SuperChefs camps pushed online by pandemic

‘Enthusiastic’ launch of program, which sees ingredient pickup at one local school

Court awards woman $143K for two Whalley rear-ender crashes, one by a bus

In both cases, Brigitte Bergeron’s vehicle was hit from behind while stopped at an intersection

Surrey RCMP searching for missing woman last seen in Crescent Beach

Milcah Kasomali-Chirumbwana last seen at 4:35 p.m. July 5 in the 12300-block of Beecher Street

Drive-in theatre inspires Langley pastor to create similar church service

Jericho Ridge Community Church tried out the concept Sunday, and will do it again Aug. 2

Horrifying video shows near head-on collision on Trans Canada

The video was captured on dash cam along Highway 1

Fraser Valley woman complains of violent RCMP takedown during wellness check

Mounties respond that she was not co-operating during Mental Health Act apprehension

B.C. sees 12 new COVID-19 cases, no new deaths

Three outbreaks exist in health-care settings

Lost dog swims Columbia River multiple times searching for home

The dog was missing from his Castlegar home for three days.

COVID-19: B.C. promotes video-activated services card

Mobile app allows easier video identity verification

ICBC to resume road tests in July with priority for rebookings, health-care workers

Tests have been on hold for four months due to COVID-19

Would you take a COVID-19 vaccine? Poll suggests most Canadians say yes

75 per cent of Canadians would agree to take a novel coronavirus vaccine

Abbotsford school vice-principal accused of getting Instagram ‘confessions’ page shut down

@A.S.S.S.Confessions page claims school officials contacted families to find out person behind page

Recreational chinook openings leave First Nations frustrated on the Lower Fraser

Limited recreational openings for chinook on the Chehalis and Chilliwack rivers being questioned

Most Read