Please answer the questions that follow the hypothetical fact situation.

Facts: Ernest and Mabel have been in an exclusive relationship for many months. The relationship has evolved to the point where they enjoy regular sexual intercourse.

Ernest and Mabel agreed in advance that Mabel would take the birth control pill in order to avoid pregnancy, and that Ernest would wear a condom in order to further minimize the risk of pregnancy and also to minimize the chance of a sexually transmitted infection ("STI").

Both parties agreed that sexual intercourse would happen only if Mabel was on the pill and Ernest wore a condom.

Both parties were sexually inexperienced, yet tested themselves for STI's. They both tested negative throughout the relationship.

One night the couple fell asleep beside each other. Ernest woke up in the middle of the night and wanted to have intercourse with Mabel. He snuggled into her, she woke up, and she responded positively. In her drowsy state of mind Mabel assumed that Ernest was wearing a condom; however, Ernest had made a last-minute decision not to wear one. The couple engaged in intercourse and went back to sleep.

The next morning, Mabel noticed that there was no condom wrapper or used condom. She asked Ernest if he had worn a condom and he said no, he had decided not to. He said that he thought she knew he wasn't wearing one. Mabel felt betrayed and ultimately went to the police, who decided to consult a Crown Attorney before charging Ernest with Sexual Assault.

For the purposes of this question, assume that there was no chance of pregnancy or of spreading an STI even without a condom.

In answering the questions below, please do NOT discuss the defence of mistaken belief in consent.

Questions:

• (1) You are the Crown Attorney who is consulted by the police. What would your advice be to the police about laying a Sexual Assault charge against Ernest? In expressing an opinion as to whether or not it would be appropriate to charge Ernest, please refer to the relevantCriminal Codeprovisions and to any cases that are on point. Please make sure to address whether criminal liability would be based on (1) absence of consent or (2) fraud vitiating consent.
• (2) Would your answer be any different if, instead of not wearing a condom, Ernest had poked holes in his condom before putting it on? Please explain, referring to one SCC case.
• (3) Instead of Ernest not wearing a condom, assume that Mabel decided that she wanted to get pregnant so, without telling Ernest, she went off the pill. Some months later she becomes pregnant, and confirms to Ernest that she went off the pill. Could Mabel be convicted of Sexual Assault against Ernest? Please explain your answer, again by referring to at least one SCC case.