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Moral Considerations in Opposition to Jurisprudence - Brandon Latawiec

Introduction – Evolving Moral Values

Criminal law generally attempts to impose societal notions of morality equally, but this process can be impeded by the legal system itself. Moral values are especially significant in criminal law, where, although the law is codified, interpretations of the code and developing jurisprudence can and should reflect society’s moral values. As our understanding of previously decided values changes or legislation is introduced, the common law allows us to reconcile these changes in light of our development as a society. This can be seen in the decriminalization of marijuana throughout Canada, for instance. In some circumstances however, the nuances of jurisprudence may interfere with the Courts’ capacity to integrate updated moral values. This fact can be seen in a recent case from the Supreme Court of Canada. In R v Kirkpatrick, although the holding was unanimous, the differences between the analyses represented very different viewpoints.[1] The majority elected to distinguish the facts of the case from a relatively similar case, R v Hutchinson, in order to better serve societal morals which have enjoyed greater prominence as of late, such as protecting racialized or vulnerable groups.[2] The minority vehemently rejected this reasoning, disputing it as “incoherent and illogical”, and claimed that the jurisprudence established in R v Hutchinson was sufficient to decide this case.[3] The Supreme Court of Canada in Kirkpatrick was effectively tasked with reconciling evolving moral values with previously established jurisprudence.

Facts of the Case

The case at hand, R v Kirkpatrick, is an appeal involving a sexual assault.[4] In this case the accused and the complainant had met, first online and then in person, with a mutual interest in pursuing sexual relations. Prior to intimacy, the complainant had made it expressly clear that condom use would be required prior to engaging in the sexual act. During the first incidence a condom was used; however, shortly thereafter, the accused attempted to initiate intercourse once more. Believing the accused was using a condom, the complainant pursued sexual relations again, only to find afterwards that the accused had not worn a condom. Based on these events, the accused was charged with sexual assault.[5] At trial the accused had argued that based on Hutchinson, in which a two-step process for determining consent was formulated, the Crown had not proved the absence of consent.[6] Consent being an essential element of the actus reus of sexual assault, the trial judge accepted the argument and dismissed the charge.[7] The Crown subsequently appealed and in a unanimous decision the appeal was allowed, and a new trial ordered.[8] The accused then appealed the setting aside of his acquittal to the Supreme Court of Canada.[9]

Past Ruling

Although this case was ultimately judged by the Supreme Court of Canada, the previous instances of the case must be examined to appreciate the significance of the ruling. The two-step process defined in Hutchinson first questions whether the complainant had consented to engage in sexual activity under s. 273.1(1) of the Criminal Code. If the complainant had consented, or at least conducted themselves in such a way as to raise reasonable doubt about their consent, the second step of the process dictates that consideration be given to s. 265(3)(c) or s. 273.1(2)(c) to determine if there are any circumstances, including fraud, that invalidate the apparent consent.[10] The trial judge found that the complainant’s acquiescence to intercourse was enough to establish consent whereby no evidence was produced by the Crown to establish that the consent was induced by fraud. This lack of evidence was integral to the dismissal of the charge.[11] The Crown appealed successfully, and the Court of Appeal unanimously set aside the acquittal; however, the reasoning by the three judges was split as to which Criminal Code provision, s. 273.1(1) or s. 265(3)(c), applied.[12]Thus, the question posed to the Supreme Court: do conditions such as use of a condom constitute part of the “sexual activity in question” under s. 273.1(1) of the Criminal Code, or is condom use irrelevant to consent under s. 273.1(1) and instead may fall under fraud if substantiated under s.265(3)(c) of the Criminal Code?[13]

Supreme Court Ruling

Justice Martin provided the reasoning for the majority in this case and concluded that the condition of condom use constitutes part of “the sexual activity in question” under s. 273.1(1) of the Criminal Code; when such a condition to intercourse is violated, it is apparent that no consent is given.[14] In Hutchinson, the accused had used a faulty condom in the hopes of achieving a pregnancy, rather than no condom at all, but no legal distinction was found between the two scenarios.[15] The majority in this case distinguish between the two cases as allowing Hutchinson to be ruled by the fraud provision due to the slight difference in facts, whereas the present case should be examined through examining the complainant’s consent to sexual activity. This approach, as stated by the majority, will better protect those groups who are more frequently subject to this category of violation of consent, such as racialized or trans women.[16]

The minority concurring reasoning was provided by Justices Côté, Brown, and Rowe. They argued that the jurisprudence established in Hutchinson was sufficient to decide Kirkpatrick due to the similarities in the cases and found no compelling reason to distinguish the cases, instead relying on the fraud provision under s. 265(3)(c) as opposed to consent under s. 273.1(1).[17] In fact, they contended that distinguishing between these cases on the basis provided by Justice Martin would equate to unnecessarily overturning the jurisprudence established in Hutchinson.[18] A side effect of relying on s. 273.1(1), they claim, is that criminal liability would be expanded and some of those same marginalized groups presented by the majority overrepresented in similar cases.[19] But this argument is secondary to the importance placed on Hutchinson in governing Kirkpatrick.

The Implications of the Differences in Analysis to the Legal System

The Supreme Court of Canada is the highest court and as such, its decisions are binding; the court is aware of this, and its decisions reflect the utmost consideration of the precedent that will be set. Ratios derived from cases are given broad consideration to apply to future cases. The minority’s concurring opinion in Kirkpatrick explicitly states this matter.[20] This authority allows the court to adapt to changing social conditions, but it must remain responsible to jurisprudence so as not to disrupt the courts unnecessarily with haphazard change. Reconciling this change with established jurisprudence in Kirkpatrick is central to the dispute between the majority and minority reasonings.[21] Although the reasoning put forth by the minority is logical and Hutchinson can be seen as applying to the case at bar, the minority’s reasoning fails to properly account for the significance of the majority’s distinction of Kirkpatrick. Inclusion of conditions such as condom use under s. 273.1(1) of the Criminal Code rather than under s. 265(3)(c) allows a broader interpretation of consent, and shifts focus away from determining whether fraud occurred.[22] Under the fraud provision, the onus is on the Crown to provide evidence that consent had been vitiated, rather than focusing on whether consent had been given at all.[23] As the majority’s opinion had claimed, this would better protect those groups who are more vulnerable to incidences of “stealthing”.[24] Stealthing refers to an accused secretly removing, or pretending to put on, a condom during sexual activity. Where the cases of Kirkpatrick and Hutchinson are indistinguishable as claimed by the minority, the decision to distinguish them by the majority must have been a deliberate decision to further social change through the law.

In my humble opinion, the previous jurisprudence did not necessitate such a distinction, however it cannot be seen as a negative change such as the minority concurring opinion claimed.[25] In the extreme, the jurisprudence has changed, and the law re-evaluated—overturned, according to the minority--to better protect those vulnerable groups that need protecting.[26] At a minimum, the cases are now distinguishable, and the afforded protection remains in cases of conditional consent. If the cost of enhanced legal protection for vulnerable groups is a change to jurisprudence, then that jurisprudence should be changed, and the courts forced to adapt. While the minority’s reasoning opposes this idea primarily on the basis that it will destabilize the courts, the alternative is to scarcely enact changes for the benefit of society.[27] Based on the majority opinion in this case however, I am reasonably confident in the Supreme Court of Canada going forward to continue to enact positive change where contemporary facts and statistics deem it necessary.[28]Optimistically, the minority reasoning also gave some consideration to the effects of the newly expanded criminal liability on marginalized groups.[29] And although this focus was secondary to the importance placed on jurisprudence, it was, thankfully, acknowledged. It remains to be seen whether the Supreme Court majority made the best choice for the interests of those groups, but, at least, based on their reasoning in this case, great importance was placed on these evolving moral values, above the established jurisprudence

[1] R v Kirkpatrick 2022 SCC 33 at paras 2, 111 [Kirkpatrick]. [2] Ibid at para 61. [3] Ibid at para 120. [4] Ibid at para 1. [5] Ibid at paras 3-10. [6] Ibid at paras 15, 18. [7] Ibid at para 15. [8] Ibid at para 19. [9] Ibid at para 3. [10] R v Hutchinson 2014 SCC 19 at para 4 [Hutchinson]. [11] Kirkpatrick, supra note 1 at para 16. [12] Ibid at para 19. [13] Ibid at para 23. [14] Ibid at paras 99, 100. [15] Hutchinson, supra note 10 at para 41. [16] Kirkpatrick, supra note 1 at paras 102, 105. [17] Ibid at paras 113, 117. [18] Ibid at para 116. [19] Ibid at para 115. [20] Ibid at para 120. [21] Ibid at paras 120, 121, 124. [22] Ibid at paras 34, 96. [23] Ibid at paras 74, 75. [24] Ibid at para 63. [25] Ibid at para 112. [26] Ibid at para 116. [27] Ibid at para 286. [28] Ibid at para 59. [29] Ibid at para 115.


The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.


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