Law360 Canada (July 29, 2022, 2:15 PM EDT) -- Appeal by Kirkpatrick from a decision of the British Columbia Court of Appeal that set aside his acquittal on a charge of sexual assault and ordered a new trial. The complainant testified that she made it clear to Kirkpatrick she would only agree to have sexual intercourse with him if he wore a condom. During their second episode of intercourse, Kirkpatrick did not wear a condom. The complainant only realized Kirkpatrick had not been wearing a condom when he ejaculated inside her. During the resulting trial for sexual assault, Kirkpatrick brought a no-evidence motion. The trial judge granted the motion on the basis the complainant had consented to all the physical acts of sexual relations the parties engaged in and dismissed the charge. The Court of Appeal unanimously allowed the appeal but split on the reasoning as to which Criminal Code provision applied in examining consent....
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