R. v. Bear (C.W.), 2013 MBCA 96

• Judge: Steel, Beard and Burnett, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 04, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBCA 96;(2013), 299 Man.R.(2d) 175 (CA)

R. v. Bear (C.W.) (2013), 299 Man.R.(2d) 175 (CA);

      590 W.A.C. 175

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.003

Her Majesty The Queen (appellant) v. Clifford Wayne Bear (accused/respondent)

(AR 11-30-07643; 2013 MBCA 96)

Indexed As: R. v. Bear (C.W.)

Manitoba Court of Appeal

Steel, Beard and Burnett, JJ.A.

October 24, 2013.

Summary:

The accused was charged, inter alia, with one count of aggravated assault for spitting in a police officer's face at the police station. The accused was HIV positive.

The Manitoba Court of Queen's Bench, in a decision reported at 267 Man.R.(2d) 291, held that the Crown failed to prove the offence of aggravated assault beyond a reasonable doubt, but convicted the accused of simple assault. The Crown appealed.

The Manitoba Court of Appeal allowed the appeal and substituted a conviction of attempted aggravated assault for the conviction of simple assault.

Criminal Law - Topic 1415

Assaults - Aggravated assault - Section 268(1) of the Criminal Code provided that "Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant" - The Manitoba Court of Appeal discussed the "endangerment" component of s. 268(1) in a situation where an accused, who was HIV positive, spit in a police officer's face and was charged with aggravated assault - After reviewing the jurisprudence, including R. v. Mabior (SCC 2012), the court concluded that only where there was a realistic possibility of transmission of HIV, would a significant risk of serious bodily harm and, therefore, endangerment be established - See paragraphs 26 to 64.

Criminal Law - Topic 1415

Assaults - Aggravated assault - An HIV-positive accused was charged with aggravated assault for spitting in a police officer's face (Criminal Code, s. 268(1)) - The saliva, possibly mixed with blood, went into the officer's eyes - The officer did not get HIV - The trial judge acquitted the accused of aggravated assault, holding that the Crown had not established that there was a "significant risk of serious bodily harm" - The Crown appealed - The Manitoba Court of Appeal held that the trial judge was correct in acquitting on the aggravated assault charge - The court stated that even assuming that there was some blood mixed with the spit, in order to find that the accused endangered the officer's life, there had to be evidence of a real risk of HIV transmission (i.e., a realistic possibility of transmission) - Here, there was no evidence adduced by the Crown that approached proof of such a risk - See paragraphs 26 to 64.

Criminal Law - Topic 1415

Assaults - Aggravated assault - An HIV-positive accused was charged with aggravated assault for spitting in a police officer's face (Criminal Code, s. 268(1)) - The saliva, possibly mixed with blood, went into the officer's eyes - The officer did not get HIV - The trial judge acquitted the accused on the aggravated assault charge and convicted him of common assault - The Crown appealed - The Manitoba Court of Appeal upheld the acquittal - However, the trial judge erred in failing to convict the accused of attempted aggravated assault - Mens rea was established - The accused intended to transmit HIV by spitting - It was immaterial that it was not a realistic possibility to transmit HIV in this way - His spitting at the police officer coupled with his comments that he had HIV, his threats and his ambushing the officer showed completed mens rea along with action that was more than preparatory - See paragraphs 65 to 77.

Criminal Law - Topic 1415

Assaults - Aggravated assault - The Manitoba Court of Appeal (Steel, J.A.), stated that "In obiter, I would note that it is not clear to me why some cases involving HIV non-disclosure with a sexual partner attract a charge of aggravated assault as opposed to aggravated sexual assault or common nuisance. It is especially troubling since aggravated sexual assault carries a maximum life sentence while the maximum for aggravated assault is 14 years" - See paragraph 38, footnote 2.

Criminal Law - Topic 2621

Attempts, conspiracies, accessories and parties - Attempts - General - Section 660 of the Criminal Code provided that "Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt" - The Manitoba Court of Appeal stated that "...  in the offence of attempt, where the mens rea is complete, it is sometimes the case that the actus reus of the completed offence is deficient, and sometimes this will be so because an attendant circumstance is lacking. An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission. Physical impossibility is not a defence to a charge of attempt. The crime of attempt consists of intent to commit the completed offence together with some act more than preparatory taken in furtherance of the attempt" - See paragraph 69.

Criminal Law - Topic 2628

Attempts, conspiracies, accessories and parties - Attempts - Where commission of offence impossible - [See third Criminal Law - Topic 1415 and Criminal Law - Topic 2621 ].

Criminal Law - Topic 4866

Appeals - Indictable offences - Grounds of appeal - Misapprehension of evidence - An HIV-positive accused was acquitted on a charge of aggravated assault for spitting in a police officer's face - The Crown appealed, claiming that the trial judge misapprehended or misused evidence by relying on a nurse's evidence respecting risk of transmission when he was never qualified as an expert - The Manitoba Court of Appeal held that the judge erred in treating the nurse as an expert without conducting a formal voir dire respecting his qualifications - However, that error was not sufficient to require appellate intervention - The nurse had expertise in HIV transmission - In any event, the judge had the same evidence from a qualified expert - The Crown had not met the evidentiary burden of establishing nexus between the legal error and the verdict entered - See paragraphs 78 to 89.

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of court of appeal - Appeal from an acquittal - The Manitoba Court of Appeal stated that on a Crown appeal from acquittal, the appeal court's jurisdiction to hear the appeal was limited to questions of law and did not extend to questions of mixed fact and law or questions of fact - However, where the Crown argued on appeal that the trial judge applied the incorrect legal test/principle to the facts, that raised a question of law reviewable on the standard of correctness - See paragraphs 23 to 25.

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of court of appeal - Appeal from an acquittal - An HIV-positive accused was acquitted on a charge of aggravated assault for spitting in a police officer's face, but convicted of common assault - The trial judge also rejected a conviction for attempted aggravated assault - The Crown appealed - The Manitoba Court of Appeal upheld the acquittal on the aggravated assault charge, but held that the trial judge erred in failing to convict the accused of attempted aggravated assault - The court held that this was an appropriate case to allow the appeal and enter a verdict of guilty with respect to the offence for which the accused should have been found guilty, namely, attempted aggravated assault - See paragraphs 90 to 96.

Criminal Law - Topic 4978

Appeals - Indictable offences - Powers of court of appeal - Power to substitute a verdict - [See second Criminal Law - Topic 4975 ].

Evidence - Topic 7001

Opinion evidence - Expert evidence - Qualifications and declaration that a witness is an expert - The Manitoba Court of Appeal stated that "...  while the failure of a trial judge to qualify a witness as an expert, on the face of it, constitutes an error in law, not all errors involving an expert witness rise to a significant level. Where the witness has some knowledge to impart which rises above the level of the ordinary person, but has not been formally qualified, that witness's evidence is not struck, but that fact may go to the weight given the evidence. Where the witness is not shown to have possessed the expertise to testify in the area, his or her evidence is to be disregarded, but that error will not result in the appeal being allowed unless a nexus can be shown between reliance on that evidence and the verdict" - See paragraphs 85 and 86.

Evidence - Topic 7001

Opinion evidence - Expert evidence - Qualifications and declaration that a witness is an expert - [See Criminal Law - Topic 4866 ].

Evidence - Topic 7003

Opinion evidence - Expert evidence - Procedural prerequisites to admission of - [See first Evidence - Topic 7001 ].

Cases Noticed:

R. v. Mabior (C.L.) (2010), 258 Man.R.(2d) 166; 499 W.A.C. 166; 2010 MBCA 93, revsd. (2012), 434 N.R. 431; 2012 SCC 47, refd to. [para. 2].

R. v. Cuerrier (H.G.), [1998] 2 S.C.R. 371; 229 N.R. 279; 111 B.C.A.C. 1; 181 W.A.C. 1, refd to. [para. 8].

R. v. Thornton (1991), 42 O.A.C. 206; 1 O.R.(3d) 480 (C.A.), not appld. [para. 16].

R. v. Koczab (A.) (2013), 294 Man.R.(2d) 24; 581 W.A.C. 24; 2013 MBCA 43, refd to. [para. 23].

R. v. T.W.B. (2012), 275 Man.R.(2d) 157; 538 W.A.C. 157; 2012 MBCA 7, refd to. [para. 24].

R. v. Farrah (D.) (2011), 268 Man.R.(2d) 112; 520 W.A.C. 112; 2011 MBCA 49, refd to. [para. 24].

R. v. Sayers, 2008 ONCJ 406, refd to. [para. 28].

R. v. Phillips (D.J.), [2009] O.T.C. Uned. 220 (Sup. Ct.), refd to. [para. 29].

R. v. Melaragni (1992), 75 C.C.C.(3d) 546 (Ont. Gen. Div.), refd to. [para. 31].

R. v. De Freitas (D.A.) (1999), 134 Man.R.(2d) 78; 193 W.A.C. 78; 132 C.C.C.(3d) 333 (C.A.), refd to. [para. 32].

R. v. Williams (H.L.), [2003] 2 S.C.R. 134; 308 N.R. 235; 231 Nfld. & P.E.I.R. 1; 686 A.P.R. 1; 2003 SCC 41, refd to. [para. 48].

R. v. Thomas (R.T.) (2010), 258 Man.R.(2d) 146; 499 W.A.C. 146; 262 C.C.C.(3d) 73; 2010 MBCA 91, refd to. [para. 59].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 70].

R. v. Sarrazin (R.) et al. (2010), 268 O.A.C. 200; 2010 ONCA 577, affd. [2011] 3 S.C.R. 505; 422 N.R. 214; 284 O.A.C. 170; 2011 SCC 54, refd to. [para. 72].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161; 2 O.A.C. 124; 10 C.C.C.(3d) 385, refd to. [para. 73].

R. v. Detering, [1982] 2 S.C.R. 583; 45 N.R. 91, refd to. [para. 74].

R. v. Reis (J.A.), [2004] 6 W.W.R. 640; 177 Man.R.(2d) 152; 304 W.A.C. 152; 2003 MBCA 98, refd to. [para. 74].

R. v. G.T., [2011] O.T.C. Uned. 7136; 2011 ONSC 7136, refd to. [para. 75].

R. v. Pottelberg (P.R.), [2010] O.T.C. Uned. 5756; 2010 ONSC 5756, refd to. [para. 75].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 81].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 81].

R. v. R.G.B. (2012), 275 Man.R.(2d) 119; 538 W.A.C. 119; 2012 MBCA 5, refd to. [para. 82].

R. v. O'Kane (P.J.) (2012), 284 Man.R.(2d) 72; 555 W.A.C. 72; 2012 MBCA 82, refd to. [para. 82].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 83].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 87].

R. v. Foley (J.A.) (1996), 75 B.C.A.C. 195; 123 W.A.C. 195 (C.A.), refd to. [para. 88].

R. v. Rayner (D.V.) (2000), 189 N.S.R.(2d) 144; 590 A.P.R. 144; 2000 NSCA 143, refd to. [para. 88].

R. v. Korol (L.R.) (2009), 268 B.C.A.C. 136; 452 W.A.C. 136; 2009 BCCA 118, refd to. [para. 88].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 92].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1; 169 D.L.R.(4th) 193, refd to. [para. 93].

R. v. Audet (Y.), [1996] 2 S.C.R. 171; 197 N.R. 172; 175 N.B.R.(2d) 81; 446 A.P.R. 81; 135 D.L.R.(4th) 20, refd to. [para. 93].

R. v. Lutoslawski (J.), [2010] 3 S.C.R. 60; 408 N.R. 138; 269 O.A.C. 44; 2010 SCC 49, refd to. [para. 93].

R. v. Schritt (K.A.), [2013] Man.R.(2d) Uned. 19; 2013 MBCA 32, refd to. [para. 93].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 268(1) [para. 26]; sect. 660 [para. 68]; sect. 686(4) [para. 91].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), para. 12.131 [para. 81].

Ferguson, Gerry, Failure to Disclose HIV-Positive Status and Other Unresolved Issues in Williams (2004), 20 C.R.(6th) 42, generally [para. 35].

Grant, Isabel, Developments in Substantive Criminal Law: The 2003-2004 Term (2004), 26 Sup. Ct. L. Rev. 215, generally [para. 76].

Grant, Isabel, The Prosecution of Non-disclosure of HIV in Canada: Time to Rethink Cuerrier (2011), 5 McGill Journal of Law and Health 7, p. 74 [para. 38, footnote 2].

MacAlister, David, and Verdun-Jones, Simon N., Unprotected Sexual Intercourse with Knowledge of HIV-Positive Results: Attempted Aggravated Assault or the Need for Legislative Reform? (2003), 13 C.R.(6th) 257, generally [para. 76].

Counsel:

A.Y. Kotler, for the appellant;

E.G. Murphy, for the respondent.

This appeal was heard on April 4, 2013, before Steel, Beard and Burnett, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Steel, J.A., on October 24, 2013.