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Most people should understand the basic concept and importance of consent in a sexual relationship, but a recent case has the B.C. Court of Appeal in knots over unique circumstances sure to complicate the discussion.

In this case, both partners agreed to have sex but she had one rule — he had to wear a condom. She was insistent on the subject and he indicated he understood and agreed. After a platonic date in March 2017, they hooked up again at his place a few days later, had sex and used a condom.

But in the middle of the night, after they engaged a second time, she realized he did not use a condom. She called police and he was charged and later tried for sexual assault.

By then, the Canadian judicial system had already canvassed these finer points of consent and sexual assault in a somewhat similar case taken all the way to the Supreme Court of Canada. But that case was more clear. It involved a woman who demanded her lover use a condom, but he poked holes in the condom, she got pregnant and he was convicted of aggravated sexual assault.

That man was convicted in Nova Scotia and that decision was upheld by two higher courts, including the Supreme Court of Canada — the country’s highest court. The analysis the courts used was even more complicated but came down to a little known subsection of the Canadian Criminal Code definition of sexual assault that says "no consent is obtained where the complainant submits or does not resist by reason of … fraud.”

When the accused in the B.C. case, Ross McKenzie Kirkpatrick, was tried in provincial court, he was acquitted in part because of a misunderstanding of the Supreme Court analysis but also because the judge found no evidence of fraud.

Higher courts are typically expected to iron out some of these difficult questions, but while three judges with the B.C. Court of Appeal all agreed the case must go back to trial, they couldn’t agree on why.

Two judges said the complainant could not have consented.

"Sexual intercourse with a condom is not the same physical activity as sexual intercourse without a condom. A person may validly limit their consent to sexual intercourse with a condition that their partner wear a condom,” Justice Harvey Groberman said.

Two of the judges also said the failure was on the question of fraud.

"There was evidence the complainant would not have consented to sexual activity with the accused if she had known the accused was not wearing a condom, which would constitute fraud,” Justice Elizabeth Bennett wrote.

While the case will go back to trial — and perhaps to the Supreme Court of Canada for some clarification on the matter since four judges all interpreted the prior ruling differently — the unique facts of the case may be instructive to everyone.

The justices explored some deeper concepts on how judges should interpret similar cases to avoid a miscarriage of justice. You can read more in the decision here.

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