HALIFAX - A Nova Scotia judge convicted a man of sexual assault Wednesday for having intercourse with his girlfriend after he poked holes in her condoms.
Justice Richard Coughlan of the Supreme Court of Nova Scotia found Craig Jaret Hutchinson, 41, of Clyde River not guilty of aggravated sexual assault but guilty of the lesser offence.
Coughlan said the woman had only consented to sex on the understanding intact condoms were being used, and that Hutchinson knew she didn't wish to have a baby.
The woman from Halifax became pregnant and had an abortion in the fall of 2006, and later suffered an infection of her uterus, which was treated with antibiotics.
Coughlan found that Hutchinson sabotaged the condoms and aimed to have a baby with the woman, who cannot be identified under a court-ordered publication ban.
"There was no voluntary agreement by (the woman) to the sexual activity in question, which was sexual intercourse without contraception," said Coughlan.
"He knew she didn't consent to sexual intercourse without contraception."
Hutchinson will be sentenced Dec. 2.
A Supreme Court judge found Hutchinson not guilty of aggravated sexual assault in 2009, but that decision was overturned by the Nova Scotia Court of Appeal, which ordered a new trial.
Coughlan said in his ruling on Wednesday that it couldn't be shown beyond a reasonable doubt that the unprotected sex had led to the pregnancy. It was conceivable, he said, that the woman became pregnant after a positive pregnancy test on Sept. 5, 2006, after which she stopped asking Hutchinson to use condoms.
Coughlan said he also considered medical testimony indicating abortion doesn't usually pose a high risk of harm.
"Considering the evidence, it has not been established Mr. Hutchinson's actions exposed (the woman) to a significant risk to her life," Coughlan said.
"The Crown has not shown that Mr. Hutchinson's actions endangered (her) life."
The woman testified she was unable to take birth control pills for medical reasons, so the couple relied on condoms.
In his decision, Coughlan noted the woman was considering leaving Hutchinson when he asked her to take home-pregnancy tests in September 2006. The second test on Sept. 5 was positive.
Coughlan said the woman was going to work at the relationship and planned to have the baby but changed her mind and broke up with Hutchinson.
After ignoring a series of text messages from Hutchinson, the woman took a phone call from him.
The judge read the texts, in which Hutchinson told the woman not to use the condoms because he had put holes in them and he was worried she would get a sexually transmitted disease.
The judge read a text message from Hutchinson where he apologizes for poking the holes in the condoms and says, "I wanted a baby with you so."
When the woman checked her condoms, she found that each one had a hole in it, said the judge.
"(The woman) was in shock. Poking holes in condoms was the last thing she thought anyone would do. She wouldn't consent to sex with condoms with holes in them," said Coughlan.
Supreme Court Justice Gerald Moir originally found Hutchinson not guilty in 2009, ruling his actions did not constitute a sexual assault. He did, however, say that Hutchinson's actions were fraudulent and dastardly.
Two out of three justices of the Appeal Court later ruled the woman did not consent to unprotected sex and that the piercing of the condoms fundamentally altered the nature of the sexual activity.
In their written decision ordering a new trial, the appeal court judges wrote: "There was some evidence upon which a finding of endangerment or bodily harm could be based."