Man found guilty for failing to obtain ‘fresh consent’ for switching sex acts

A man has been convicted of sexual assault after failing to receive “fresh communicated consent” when switching sexual acts.

Justice Elliot Leven delivered his decision in Brandon’s Court of King’s Bench on Thursday and gave a written decision to the lawyers outlining his reasons for the conviction.

“I find that silently switching from consensual vaginal intercourse with a condom to cunnilingus requires fresh communicated consent. Otherwise, it constitutes sexual assault,” Leven said in the written decision.

A publication ban on information that could identify the victim prevents the Sun from naming the 30-year-old accused.

In his decision, Leven summarized key points from the trial, which took place in November 2025.

In the early hours of Sept. 24, 2017, the accused asked the woman to hang out, and she went to his room. They both lived on campus at Brandon University.

She alleged that the man tried to kiss her and spoke about sex, but she declined. She eventually agreed to have sexual intercourse on the condition that he wore a condom and he agreed.

The woman alleged the accused removed the condom in the middle of sexual intercourse and continued without the condom and without telling her.

When the sexual intercourse finished, she saw a condom on the floor beside the bed and assumed he took it off during sexual intercourse, Leven said.

She also alleged he pushed her head down into the mattress during the sexual intercourse.

“The complainant objected because it hurt, and because she was afraid it would break her glasses. She loudly told the accused to stop, but he didn’t stop,” Leven said.

On Nov. 2, 2017, she said the accused asked her to hang out again, and she met him in a public space. She said she asked why he removed the condom and he told her it was because he “didn’t want to ruin the mood.”

The accused, during his testimony, denied having sexual intercourse without a condom, and instead said the rim of the condom tore, so he started performing oral sex on the woman while he switched condoms and threw the old one on the floor.

He said they then continued having sexual intercourse with the new condom.

“He didn’t tell the complainant about the second condom. At the trial, no one asked him why he didn’t tell her,” Leven said.

The accused also denied that he pushed her head down or that she told him to stop at any point.

He also denied telling the woman that he thought it would “ruin the mood” if he told her about the condom.

Leven said the accused’s evidence regarding the allegations that he had sexual intercourse without a condom and pushed her head into the mattress “raised a reasonable doubt about his guilt.”

While the woman never said the complainant performed oral sex on her, Leven said he accepted the accused’s version of events in respect to that matter, including that the woman never communicated any sort of consent to the oral sex.

He said based on the criminal code and case law, “consent to vaginal sex does not automatically include consent to cunnilingus.”

“Different people like and dislike different sexual activities. Some people might enjoy vaginal sex but might not enjoy receiving cunnilingus,” Leven said.

He said there is no such thing as implied consent, and silence or passivity does not count as communicated consent.

“It is logical and consistent with the case law to conclude that the accused was obligated to receive communicated consent to cunnilingus before he began. There is no dispute that he never did this. Therefore, he committed sexual assault,” Leven said.

Sentencing will take place at a later date following the completion of a court-ordered pre-sentence report.

» sanderson@brandonsun.com