FACTS: Respondent tested positive for HIV, but ignored instructions of public health nurse to wear condoms and inform sexual partners of HIV status. Respondent began a sexual relationship three weeks later, and did not disclose HIV status. Sexual relationship continued even after HIV status was revealed when tested for other reasons. The first relationship eventually ended, but a second began shortly thereafter, where HIV status was not disclosed. Neither partner would have agreed to sex if they knew respondent was HIV+.
PROCEDURAL HISTORY: Acquitted at trial. CA refused to set acquittals aside.
ISSUES: Is consent to sexual activity vitiated by fraud if an HIV+ person conceals or fails to disclose their status?
DECISION: Appeal allowed, new trial ordered.
REASONS: Historically, only fraud relating to the nature and quality of the sexual act (including the identity of the participants) would vitiate consent. This changed with the sexual assault amendments to the Code in 1983, where the term "fraud" was left unqualified. This broadened the nature of fraud; all that is required is a causal connection between the fraud and the obtaining of consent. Fraud consists of two elements: dishonesty and deprivation or risk of deprivation (which potentially includes non-disclosure of important facts). Given the danger of bodily harm that HIV infection poses to those exposed, both lying about and failing to disclose HIV status can be fraudulent. Consent to sexual activity with an HIV+ person requires that they know they are consenting to that risk, and the Crown must show the complainant would not have consented had they known about the accused's status. The conduct of the accused must pose a significant risk of serious harm to the complainant to constitute deprivation serious enough to vitiate consent. It is appropriate to use the criminal law to deter reckless exposure to HIV.
RATIO: Exposing someone to a significant risk of serious harm from your HIV+ status, if you do not disclose or lie about your status, can amount to fraud vitiating consent under s. 265(3) if the complainant would not have consented to sex had they known about your status.
COMMENTS: This means that you don't actually have to transmit HIV to someone to be liable for assaulting them, if there is dishonesty. Exposure to significant risk is deprivation enough.
R v Williams [2003] 2 SCR 134 (Binnie J.)
FACTS: Complainant and respondent were in a sexual relationship. 4 months into the relationship, respondent discovered he could've been exposed to HIV, and he discovered he was infected the next month. He did not follow the instructions of the public health nurse, and did not disclose his status. The complainant took an HIV test shortly after, for unrelated reasons, and it came back negative. The relationship ended a year later. A year and a half after that, complainant started showing symptoms of HIV infection, and discovered she was HIV+. Complainant confronted respondent, but respondent denied infection. It is unknown when the complainant contracted HIV, but it was likely that the respondent was a carrier for some time before his test and it was doubtful that the complainant was not infected before his test.
PROCEDURAL HISTORY: Found guilty of aggravated assault and nuisance, but not criminal negligence. Appeal allowed on aggravated assault, but attempted aggravated assault charge was substituted.
ISSUES: Can the charge for aggravated assault stand given that there is a reasonable doubt about whether the complainant was infected before the respondent knew that he was infected?
REASONS: The respondent's conduct was only fraudulent after he discovered that he was (or was at risk of being) HIV+, since only then could he have acted recklessly by not disclosing his status. His conduct was deceitful after he discovered his infection, but since there's a reasonable doubt about whether the complainant contracted the disease before that point, it is unclear that he exposed her to a significant risk of harm. There is no coincidence of actus reus and mens rea here. Until respondent knew status, the complainant was consenting to sexual acts with someone reasonably believed to be HIV-, and this cannot be retroactively disavowed. And since there is a reasonable doubt about when the complainant became infected, the Crown cannot prove that there was an exposure to a serious harm, since she could've been infected already. It was unclear on the evidence if she could've been reinfected or something by the respondent. On the facts, though, attempted aggravated assault could be made out given his conduct after he discovered his HIV status, even if complainant was already infected.
RATIO: Where there is a reasonable doubt about whether an HIV+ person exposed someone to a significant risk of serious harm (due to the window between infection and possible diagnosis, for example), then the offence of aggravated assault cannot be made out.
R v Mabior 2012 SCC 47 (McLachlin C.J.C.)
FACTS: Mabior had sex with 9 complainants, and did not disclose his HIV+ status to any of them. His viral load was low at the relevant times. He intermittently wore condoms, which sometimes broke. No complainants became infected, but 8 of the 9 said they would not have consented had they known his status.
PROCEDURAL HISTORY: Convicted of 6 of 9 charges of aggravated assault, acquitted on 3 because condom + low viral load falls below Cuerrier threshold. MBCA held that either low viral load or condom would have sufficed, eliminating 4 charges and upholding the 2 remaining.
ISSUES: Did Mabior commit sexual assault by not disclosing his HIV+ status, considering his low viral load and intermittent use of condoms?
DECISION: Appeal allowed, 3 convictions restored.
REASONS: While the phrase "significant risk of serious harm" makes it difficult to predict whether a particular sexual act is criminal or not, the Cuerrier approach is still valid. Fraud should be interpreted in line with Charter values and current common-law principles (recall the historical "nature and quality of the act" conception), balancing people's autonomy and ability to set what risks they see as appropriate with the need to protect people from exposure. Interpreting "significant risk of serious harm" depends on the findings of fact, and must be done on a case by case basis. A "significant risk of serious harm" means where there is a realistic possibility of transmission of HIV. If there is no realistic possibility of transmission, generally where a low (not undetectable) viral load is combined with the use of condoms, then non-disclosure will not amount to fraud.
RATIO: Consent will be vitiated for non-disclosure of HIV+ status only if there is a "significant risk of serious harm," meaning a realistic possibility of transmitting the disease through sexual activity.
COMMENTS: All of the HIV cases are bound to be redeveloped over time as medicine progresses.
