Ontario’s top court has upheld a sexual assault conviction involving non-consensual condom removal, despite the Crown’s appeal for a harsher sentence.
In a decision released this week, the Ontario Court of Appeal dismissed the Crown’s appeal of the sentencing in the case of R. v. Ranatunga, where a man was convicted after failing to use a condom during a sexual encounter, despite his partner’s explicit condition that one be used.
The man, Nimal Ranatunga, was sentenced to a conditional sentence of two years less a day.
However, of the three panel of judges, one judge dissented, finding that the trial court should have sentenced the accused to incarceration instead.
“This was a serious sexual assault that has had devastating effects on the victim. Incarceration for the balance of the sentence is necessary to advance the objectives of denunciation and general and specific deterrence,” wrote dissenting Justice Eileen Gillese.
The case dates back to March 2022. The complainant, M.F., had begun a relationship with Ranatunga, the accused, a few months prior to the night of the assault, when the pair went home for pizza and drinks after a night out.
M.F. told the court that prior to the sexual encounter she had been very vocal about where she stood regarding the use of condoms, especially because she was not on any birth control.
On the night in question, the use of condoms was discussed once again, with the respondent asking if they could have relations without one, and M.F. saying “no.”
“She made it abundantly clear that wearing a condom was a prerequisite for sex that evening,” Gillese wrote in her summary of the case.
The pair began a sexual encounter at Ranatunga’s home. During at least part of the intercourse, Ranatunga was wearing a condom, but it was taken off at some point.
“(M.F.) said she learned for the first time that he had removed the condom during intercourse when he told her … that she would ‘need to take a ‘‘Plan B’’ in the morning,” Gillese wrote.
There was no dispute at trial that Ranatunga had removed the condom. However, he argued that he “told her loudly and clearly that he was taking the condom off,” and that while she did not consent verbally, she continued to kiss him, which he took as a sign of consent.
M.F. reported the encounter to police, saying, according to the court documents, that it was the worst day/ of her life.
“She considered self-harm and suicide. She called the suicide prevention line and said that the person who answered her call was her “saving grace” and got her through the night,” Gillese wrote.
Following a two-day trial, the respondent was convicted.
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.
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.
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.
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”.
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.
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.
She argued that forced penetrative sexual assault typically calls for three to five years behind bars.
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.
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.
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