R. v. Boone (S.P.), (2016) 347 O.A.C. 250 (CA)

• Judge: Sharpe, Benotto and Huscroft, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 29, 2016
• Jurisdiction: Ontario
• Citations: (2016), 347 O.A.C. 250 (CA);2016 ONCA 227

R. v. Boone (S.P.) (2016), 347 O.A.C. 250 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MR.034

Her Majesty the Queen (respondent) v. Steven Paul Boone (appellant)

(C59417; 2016 ONCA 227)

Indexed As: R. v. Boone (S.P.)

Ontario Court of Appeal

Sharpe, Benotto and Huscroft, JJ.A.

March 29, 2016.

Summary:

The accused was convicted of two counts of aggravated sexual assault after having unprotected anal intercourse with the two male victims without disclosing to them that he was HIV-positive. The accused appealed, submitting that the trial judge erred in failing to instruct the jury that they had to acquit the accused if satisfied that the victims were reckless or prepared to assume the risk of engaging in unprotected sex with a partner whose status was unknown.

The Ontario Court of Appeal dismissed the appeal.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused was convicted of two counts of aggravated sexual assault after having unprotected anal intercourse with the two male victims without disclosing to them that he was HIV-positive - The accused appealed, submitting that the trial judge erred in failing to instruct the jury that they had to acquit the accused if satisfied that the victims were reckless or prepared to assume the risk of engaging in unprotected sex with a partner whose status was unknown - The accused argued that since the victims had engaged in the past in unprotected anal intercourse with persons with unknown HIV status, the Crown failed to prove beyond a reasonable doubt that the victims would have refused to have anal intercourse with the accused had they known he was HIV-positive (i.e., consent not vitiated by non-disclosure) - The Ontario Court of Appeal dismissed the appeal - The accused's argument would transform the accused's duty to disclose to a duty on the victims to inquire - The victims' alleged carelessness or recklessness was not relevant to the assumption of a known risk that the accused had a duty to disclose - The court stated that "The law imposed a positive duty on the [accused] to disclose his HIV-positive status to the complainants before engaging in sex with them. The issue for the jury to decide was whether the Crown had proved beyond a reasonable doubt that the complainants would not have consented had they known of the [accused's] HIV-positive status, not whether they were prepared to risk having unprotected sex with someone whose HIV status they did not know" - See paragraphs 1 to 23.

Criminal Law - Topic 689

Sexual offences - Evidence - Sexual conduct or character of complainant - Section 276(1) of the Criminal Code provided that evidence of a complainant's prior sexual activity was inadmissible to support an inference that because of that sexual activity the complainant was more likely to have consented or was less credible - The accused was charged with aggravated sexual assault for having unprotected anal intercourse without disclosing to the complainants that he was HIV-positive - The accused argued that the complainants had in the past engaged in unprotected sexual intercourse with others without knowing whether they were HIV-positive or not - In a pre-trial ruling under s. 276(1), the trial judge admitted evidence of the complainants' sexual history as relevant to the issue of fraud vitiating consent - The proposed evidence was capable of raising a reasonable doubt as to whether the complainant's would not have consented to unprotected sex had they known that he was HIV-positive - Notwithstanding that the Crown did not appeal that ruling, the Ontario Court of Appeal opined that the trial judge erred in admitting the evidence - Evidence of a complainant's general disposition to expose himself to an unknown risk by having casual unprotected sex was not probative of whether or not the complainant would have accepted a serious "known" risk - See paragraphs 24 to 46.

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - A jury found the accused guilty of two counts of aggravated sexual assault for having unprotected anal intercourse with the two complainants without advising them that he was HIV-positive - The complainants testified that they would not have consented to anal intercourse had the accused disclosed his HIV-positive status - The accused had attacked the complainants' credibility, arguing that, given their sexual history of having anal intercourse with others without knowing whether those persons were HIV-positive or not, there was a reasonable doubt as to whether they would have consented to anal intercourse had they known that he was HIV-positive - On appeal, the accused argued that the trial judge erred in failing to give a full Vetrovec warning to caution the jury of the danger of accepting the complainants' version of events unless supported by other evidence - The Ontario Court of Appeal held that the trial judge did not err in exercising his discretion to not give a Vetrovec warning - The trial judge instructed the jury on the basis of the accused's attack against the complainants' credibility (both lied during the preliminary inquiry and the accused raised the issues of prior inconsistent statements and collusion) - The accused's counsel, during the pre-charge conference, did not object to how the trial judge proposed to deal with the complainants' evidence, nor did he request a Vetrovec warning - See paragraphs 47 to 53.

Counsel:

Jonathan Shime and Benjamin Elzinga Cheng, for the appellant;

Stacey Young, for the respondent.

This appeal was heard on February 24, 2016, before Sharpe, Benotto and Huscroft, JJ.A., of the Ontario Court of Appeal.

On March 29, 2016, Sharpe, J.A., released the following judgment for the Court of Appeal.