October 28, 2021 – If someone consented to sexual activity with a condom but their partner does not comply, is the activity consensual? LEAF will submit to the Supreme Court that it is not, when the Supreme Court hears submissions in R. v. Kirkpatrick on November 3.
“Sexual activity without a condom is materially different than sexual activity with a condom,” says Rosel Kim, Staff Lawyer at LEAF. “Requesting condom use is an essential element of exercising your sexual autonomy.”
The Criminal Code defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.” LEAF will argue that including condom use in the definition of “sexual activity in question” promotes substantive equality for equity-seeking groups. These groups include those experiencing intersecting marginalization and gendered power imbalances, such as women, girls, trans, and non-binary individuals.
“Excluding condom use from the definition of ‘sexual activity in question’ in the consent provision of the Criminal Code will exacerbate inequality for marginalized groups who are more likely to experience sexual violence, such as Black, Indigenous, and racialized women, girls, and gender-diverse people,” says Kim.
Frances Mahon and Kirat Khosa (Mahon & Company) will represent LEAF before the Supreme Court. The hearing will be available by webcast on the Supreme Court’s website on November 3.
LEAF is grateful to the members of the case committee that have guided, informed, and supported this intervention: Andrea Krüsi, Joshua Sealy-Harrington, and Adriel Weaver.
Mahon & Company
Staff Lawyer, LEAF
About the Women’s Legal Education and Action Fund (LEAF)
The Women’s Legal Education and Action Fund (LEAF) is a national not-for-profit that works to advance gender equality in Canada through litigation, law reform, and public legal education.
Since 1985, LEAF has intervened in more than 100 cases that have helped shape the Canadian Charter of Rights and Freedoms, responded to violence against women and gender diverse people, pushed back against discrimination in the workplace, allowed access to reproductive freedoms, and provided improved maternity benefits, spousal support, and the right to pay equity.
LEAF understands that women and gender diverse individuals in Canada experience discrimination in different ways, and builds partnerships across communities to inform our understanding of how race, gender identity, sexual orientation, (dis)ability, class, and other intersectional identities underlie legal structures that perpetuate inequality, discrimination, and harm.