Condoms, Consent, and Sexual Assault under Canadian Law

In R. v. Kirkpatrickthe Supreme Court of Canada concluded that when agreement to sexual intercourse is conditioned on condom use, declining to wear a condom means that your partner has not consented.  In other words, you have committed sexual assault.

As Justice Martin wrote, “Since only yes means yes and no means no, it cannot be that “no, not without a condom” means “yes, without a condom”. If a complainant’s partner ignores their stipulation, the sexual intercourse is non-consensual and their sexual autonomy and equal sexual agency have been violated”.

condoms consent sexual assault law in canada

This is the first time my partner has asked me to wear a condom. Does that matter?


A person must consent to each sexual act. Prior consent does not imply future consent. Nor does it make future consent more likely.

What are some possible defences to an allegation that I had unprotected sex despite a partner requiring a condom?

Every case is different and depends on its unique facts. Some defences that might apply include:

  • Your partner consented to sex without a condom.
  • Your partner did not make a condom condition clear.
  • You took reasonable steps to determine what your partner was consenting to. Despite taking reasonable steps, your conclusion was incorrect. What constitutes reasonable steps is highly contextual.

This is far from an exhaustive list of possible defences. If you stand charged with sexual assault, you may wish to speak with a lawyer. Most criminal defence lawyers will gladly speak to individuals charged with sexual assault, at no initial charge.

You can speak to a lawyer now by calling (416) 999-8389.