(Adds quotes, text messages urging girlfriend not to use the sabotaged condoms)
By Randall Palmer
OTTAWA, March 7 (Reuters) - The Supreme Court of Canada on Friday upheld the sexual assault conviction of a Nova Scotia man for poking holes in his condoms before having consensual sex with his girlfriend in order to try to make her pregnant.
Craig Jaret Hutchinson's girlfriend, whose name the court has protected, said she had agreed to sex as long as it was with a condom so that she would not get pregnant.
The country's top court held 7-0 that while she may have consented to sex, she had not consented to unprotected sex, and that by poking holes in the condoms first, he had committed sexual assault.
"We conclude that there was no consent in this case by reason of fraud... Mr Hutchinson is therefore guilty of sexual assault," Chief Justice Beverley McLachlin and Justice Thomas Cromwell wrote in arguments joined by two other justices. The other three judges came to a similar conclusion by a different legal route.
Hutchinson, who had been out on bail, will now have to serve an 18-month prison sentence.
The written statement of facts presented by the prosecution said that Hutchinson had wanted to get his girlfriend pregnant at the time, in 2006, in order to keep their deteriorating relationship going.
The complainant ended up pregnant, though it was not clear from the evidence before the court that this was necessarily because of the condom tampering.
"While the Crown (prosecution) did not establish beyond a reasonable doubt that the complainant's pregnancy was the result of the damaged condoms, Mr. Hutchinson exposed her to an increased risk of becoming pregnant by using a faulty condom. As the trial judge found, a condom with a pinprick in it is no longer effective birth control," McLachlin and Cromwell wrote.
It was only after she was pregnant and after they had broken up that he sent her text messages telling her that he had sabotaged the condoms and urging her not to use them, presumably meaning with anybody else.
Eleven days later, the woman underwent an abortion.
"What took place here was sexual intercourse with a sabotaged condom, a sexual activity to which the complainant did not consent," Justices Rosalie Abella and Michael Moldaver wrote in arguments joined by a third judge. (Editing by Jonathan Oatis)
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