R. v. D.C. , 2012 SCC 48, R. v. D.C., 2012 SCC 48, 2012 SCC 48 (2012)

Docket Number:34094
 
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SUPREME COURT OF CANADA

Citation: R. v. D.C., 2012 SCC 48

Date: 20121005

Docket: 34094

Between:

Her Majesty The Queen

Appellant and

D.C.

Respondent

- and -

Attorney General of Alberta, Canadian HIV/AIDS Legal Network, HIV & AIDS Legal Clinic Ontario, Coalition des organismes communautaires québécois de lutte contre le sida, Positive Living Society of British Columbia, Canadian AIDS Society, Toronto People With AIDS Foundation, Black Coalition for AIDS Prevention, Canadian Aboriginal AIDS Network, Criminal Lawyers' Association of Ontario, British Columbia Civil Liberties Association, Association des avocats de la défense de Montréal and Institut national de santé publique du Québec

Interveners

Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

Reasons for Judgment:

(paras. 1 to 31)

McLachlin C.J. (LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. concurring)

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

r. v. d.c.

Her Majesty The Queen Appellant v.

D.C. Respondent and

Attorney General of Alberta,

Canadian HIV/AIDS Legal Network,

HIV & AIDS Legal Clinic Ontario, Coalition des organismes communautaires québécois de lutte contre le sida, Positive Living Society of British Columbia, Canadian AIDS Society, Toronto People With AIDS Foundation,

Black Coalition for AIDS Prevention, Canadian Aboriginal AIDS Network,

Criminal Lawyers' Association of Ontario,

British Columbia Civil Liberties Association,

Association des avocats de la défense de Montréal and

Institut national de santé publique du Québec Interveners

Indexed as: R. v. D.C.

2012 SCC 48

File No.: 34094.

2012: February 8; 2012: October 5.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ.

on appeal from the court of appeal for quebec

Criminal law - Evidence - Credibility - Sexual assault and aggravated assault - Non-disclosure of HIV status - Proof of realistic possibility of transmission of HIV - Whether trial judge could rely on doctor's note as confirmatory evidence of complainant's testimony that no condom had been used - Whether trial judge committed error on question of law - Criminal Code, R.S.C. 1985, c. C-46, ss. 265(3)(c), 268, 271, 686(1)(a)(ii).

D.C. was charged with sexual assault and aggravated assault. When she first engaged in vaginal intercourse with the complainant, she had not disclosed to him the fact that she was HIV-positive. At the time, her viral load was undetectable. The critical issue in the trial was whether a condom had been used. The only evidence on the point was that of the complainant and D.C. The complainant testified no condom was used; D.C. testified a condom was used. The trial judge found that neither witness was credible. However, on the basis of a note of D.C.'s doctor made seven years earlier and referring to a broken condom, the judge concluded that D.C. had lied to her doctor, and inferred that no condom had been worn. He convicted D.C. The Court of Appeal concluded that the trial judge's reasoning as to whether a condom was used was a reasonable inference, but set aside the convictions on the ground that even without condom use, the requirement of a significant risk of serious bodily harm was not met, given the absence of detectable HIV copies in D.C.'s blood.

Held: The appeal should be dismissed.

As discussed in R. v. Mabior, 2012 SCC 47, in the case of HIV, a significant risk of serious bodily harm is found in the presence of a realistic possibility of transmission. On the facts of this case, condom use was required to preclude a realistic possibility of HIV transmission. Given the lack of credibility of the complainant, the trial judge needed evidence that a condom had not been used in order to convict. Here, he erred in law in relying on speculation as confirmatory evidence of the complainant's testimony that a condom had not been used. He could not rely on a series of speculative conclusions about a supposed lie and the motives for it, based on a note made seven years earlier that did not constitute independent evidence. It follows that the prosecution failed to prove D.C.'s guilt on the charges against her beyond a reasonable doubt.

Cases Cited

Applied: R. v. Mabior, 2012 SCC 47; referred to: R. v. Cuerrier, [1998] 2 S.C.R. 371.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, ss. 265(3)(c), 686(1)(a)(ii).

APPEAL from a judgment of the Quebec Court of Appeal (Chamberland, Léger and Gagnon JJ.A.), 2010 QCCA 2289, 270 C.C.C. (3d) 50, [2011] R.J.Q. 18, 81 C.R. (6th) 336, [2010] Q.J. No. 13599 (QL), 2010 CarswellQue 14778, SOQUIJ AZ-50700564,...

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