Ontario court upholds sex assault sentence for man who removed condom

National Post

2 days ago

Article content
The trial judge found that M.F. had not heard Ranatunga say he was removing the condom and that there was no ambient noise in the bedroom that would have impaired her hearing. The trial judge also rejected Ranatunga's argument that he had an 'honest but mistaken' belief that M.F. had consented to unprotected sex.
Article content
At the sentencing hearing, the Crown sought a three-year penitentiary sentence, and the defence submitted that a conditional sentence of 18 months to two years less a day was appropriate or a sentence of imprisonment between 12 and 18 months to be served in a reformatory.
Article content
In the end, the trail judge sentenced the respondent to a conditional sentence of two years less a day, finding that he was a first-time offender with good rehabilitative prospects.
Article content
The trial judge found that removing a condom without consent is a 'form of violence' and an 'extremely serious violation,' but found that removing a condom is 'qualitatively different in nature than a sexual assault which involves physically holding a person down against their will and penetrating them or penetrating them when they are in a state where they could not resist; for example, sleeping or intoxicated'.
Article content
The Crown appealed the case, arguing that the sentence was unfit and that the judge did not appropriately consider the violent nature of the offence.
Article content
Gillese objected strongly to the trial judge's reasoning. 'There is no principled basis to distinguish penetration following non-consensual condom removal from other forms of penetrative sexual assault nor is there any principled basis for creating a much lower sentencing range for non-consensual condom removal sexual assault than that for other forms of penetrative sexual assault,' she wrote.
Article content
She argued that forced penetrative sexual assault typically calls for three to five years behind bars.
Article content
However, the other two justices disagreed, saying the trial judge had intended to contrast sexual assault cases with overt force or incapacitation and that the trial judge was owed deference in her decision within the changing legal landscape of these sorts of sexual assault cases.
Article content
The decision builds on the Supreme Court's 2022 ruling in R. v. Kirkpatrick, which clarified how condom use factors into sexual consent under Canadian law. In that case, the court found that a person can place conditions on their consent, and if those conditions aren't met, the sexual activity becomes non-consensual.
Article content