The complainant and the appellant met online, and up until March 2017 they had met in person on only a single occasion, for about two hours. On that occasion, they discussed sexual practices. The complainant told the appellant that she insisted on the use of condoms during sexual intercourse. The appellant agreed that such a practice was safest for all concerned. A few days later, the two decided to meet again. They engaged in intercourse on two occasions, but on the second occasion, unbeknownst to the complainant, the appellant did not wear a condom. The complainant testified that she had not consented to intercourse without a condom, and her evidence was that she would not have done so if asked. The appellant was charged with sexual assault.

At trial, following a successful no evidence motion, the appellant was acquitted of sexual assault. The trial judge found that there was no evidence that the complainant had not consented to the sexual activity in question. The trial judge also found that there was also no evidence to show that the appellant had acted fraudulently. The Crown appealed the decision.

The Court of Appeal for British Columbia unanimously allowed the Crown’s appeal. The Court held that a person could limit their consent to sexual intercourse on the condition that their partner wear a condom. Therefore, the complainant did not consent to the sexual activity.

The defendant appealed to the Supreme Court of Canada.

There is a publication ban in this case.