Kelowna man convicted of sex assault after non-consensual removal of condom

Photo: Colin Dacre

A Kelowna man will be able to avoid a criminal record after pleading guilty to sex assault in relation to an incident where he secretly removed a condom during consensual intercourse.

The man, who cannot be named to protect the identity of the victim, was involved in a casual sexual relationship with a coworker when on Oct. 7, 2021 the pair agreed to have sex on the condition that the accused use a condom.

An agreed statement of facts summarized by Judge David Ruse in Kelowna provincial court Monday said the accused prematurely ejaculated into the condom prior to starting intercourse.

Embarrassed, rather than disclosing the situation, he removed the condom. The victim did not realize the condom was removed until after intercourse concluded.

When the victim became upset and confronted him, the accused initially lied and then apologized and provided money for emergency contraception.

He later texted the victim, “I lied to you and did not use a condom because of my insecurities. This is wrong because trust is not meant to be broken… There's absolutely no f**king excuse to lie and I’m sorry.”

The accused, who appeared in court to be in his early- to mid-twenties, cooperated with police and pleaded guilty to one count of sexual assault.

After being charged, he hired a psychiatrist who has worked with sexual offenders who prepared a report for sentencing. The report generated after 11 sessions said the accused has made a “sincere effort” in treatment and has rediscovered his spirituality, making him a low risk to reoffend.

Judge Ruse noted that the Supreme Court of Canada just last year ruled that not using a condom, when it is an agreed-upon condition of intercourse, can be considered sexual assault.

In a joint submission, Crown prosecutor Patricia O'Neil and defence lawyer A. Robinson suggested a conditional discharge with two years of probation, which would allow the accused to avoid a criminal record if he abides by the conditions of the probationary term.

Judge Ruse accepted the proposal.

Judges in Canada are bound to respect joint submissions, unless they believe the proposed sentence brings the “administration of justice into disrepute” and would lead a typical person to believe there is a “breakdown in the proper function of the justice system.”

Court heard that the victim in the case did not want the accused to have a permanent criminal record over the incident.

Conditions included in the two-year probationary term include not contacting the victim, attending counseling, 100 hours of community service, not possessing weapons and providing a DNA sample for the national offender database.