The Supreme Court of Canada says sex with a condom is a different physical act than sex without one, and that the use of a condom can be a condition of consent under sexual assault law.

In a 5-4 decision today, the top court says that “no, not without a condom” should not be found to mean “yes, without a condom” in a courtroom.

The court has ordered a new trial in a British Columbia case in which a complainant told a new sexual partner, Ross McKenzie Kirkpatrick, that she would only have sex with him if he wore a condom.

The fact Kirkpatrick used a condom the first time they had sex led the complainant to assume that he was already wearing one when he initiated sex for a second time, she told the court — but he wasn’t, which she said she did not realize until he ejaculated.

The sexual assault charge against Kirkpatrick was dismissed by a trial judge who found there was no evidence the complainant had not consented to “the sexual activity in question,” nor that the defendant had been explicitly deceitful, which would have been another avenue for conviction.

Although the reasons for its decision are split, the Supreme Court unanimously agreed with the B.C. Court of Appeal’s decision that the trial judge erred in the finding of no evidence.

– The Canadian Press