The case involved Christopher James Kruk, a 41-year-old from Maple Ridge, a city in British Columbia, who was convicted of sexual assault in March 2020.

The woman testified at the trial that she woke up in Kruk’s home in May 2017 to find him having sex with her and attempted, unsuccessfully, to push him off.

Kruk denied having sex with her, claiming that the victim had removed her trousers herself and that what she assumed was rape was in fact him startling her awake.

The presiding judge gave numerous reasons for finding Kruk guilty, including that it was “extremely unlikely” that a woman could be mistaken about the sensation.

“She said she felt his penis inside her and she knew what she was feeling,” the judge wrote, finding “it is extremely unlikely that a woman would be mistaken about that feeling”.

The Court of Appeal overturned the ruling in January 2022, finding the judge’s reasoning was “speculative” and ordered a new trial.

Restored Kruk’s conviction

Prosecutors petitioned the Supreme Court, which unanimously found the appeals court had erred and restored Kruk’s conviction.

However, while Supreme Court Justice Sheilah Martin concurred with the trial judge’s conclusion, she diverted from the original ruling’s terminology.

She wrote: “Where a person with a vagina testifies credibly and with certainty that they felt penile‑vaginal penetration, a trial judge must be entitled to conclude that they are unlikely to be mistaken.”

Justice Martin continued: “While the choice of the trial judge to use the words ‘a woman’ may have been unfortunate and engendered confusion, in context, it is clear the judge was reasoning… people generally, even if intoxicated, are not mistaken about that sensation.”

Later in the ruling, she stated “the fact that the judge relied on a generalised expectation is not itself problematic”, however, she said “this is not to say that this is an incontrovertible fact about all women in all instances”.

The ruling had been seen as a test case for an emerging rule challenging judges’ use of “common-sense assumptions” in rulings which are “not grounded in the evidence”.

The Women’s Legal Education and Action Fund (Leaf), said it had intervened in the case to argue around the “lack of clarity” around the rule.

It had warned about the additional barriers to justice “for survivors, who are more likely to be women, girls, trans, and non-binary people”.

Roxana Parsa, one of the lawyers representing Leaf, said in a statement the decision “will have significant impact for all sexual assault survivors”.

Ignited a firestorm online

However the ruling’s use of the term “person with a vagina” ignited a firestorm online, with even US politicians picking up on it.

Mike Huckabee, a former Arkansas governor and Republican presidential candidate, said: “You know what’s unfortunate and confusing? What’s happened to Canada.”

Ms Kerner, from Vancouver Rape Relief and Women’s Shelter, said the organisation “appreciated” the restoration of Kruk’s conviction, saying too few assault cases in Canada resulted in “holding rapists accountable”.

But she added: “If we do not name these crimes against women as they are, if we do not understand them in the context of women’s inequality, we are undermining our ability to fight against them”.