SMR was counsel for the West Coast Legal Education and Action Fund (“West Coast LEAF”), which intervened at the Supreme Court of Canada in the recently decided case of R. v. Kirkpatrick, 2022 SCC 33.

SMR lawyer Jessica Lithwick represented West Coast LEAF in its intervention, which focused on the impact of the criminal law of violative condom practices on potential victims and complainants partaking in the criminal justice process.  The Crown, with support from West Coast LEAF and other interveners, advocated for an approach that was adopted by the majority of the Court.

Jessica argued on behalf of the West Coast LEAF in support of the Respondent Crown’s position that the law in Canada should recognize that sex with a condom and sex without a condom are different sexual acts for the purposes of s. 273.1(1) of the Criminal Code.  In other words, that violation of a person’s consent to only have sex with a condom by penetrating that person without a condom is a criminal act because there was no consent to that type of sexual contact.

West Coast LEAF’s submissions were focused on the harm caused to complainants if, as argued by the Appellant Mr. Kirkpatrick, the law would only recognize abusive condom practices as a crime if the accused had committed fraud, which requires proof of deceit and proof that the accused’s deceit of the complainant put the complainant at a significant risk of serious bodily harm.

West Coast LEAF argued that the harm requirement created harm because it would require complainants to disclose and testify about sensitive personal and medical information.  This invasive and harmful process was an undue and damaging further erosion of a complainant’s privacy rights and would contribute to the well-known problem of underreporting of sexual assault in Canada.