R. v. J.T., 2008 BCCA 463

JudgeDonald, Levine and D. Smith, JJ.A.
CourtCourt of Appeal (British Columbia)
Case DateOctober 20, 2008
JurisdictionBritish Columbia
Citations2008 BCCA 463;(2008), 288 B.C.A.C. 1 (CA)

R. v. J.T. (2008), 288 B.C.A.C. 1 (CA);

    488 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JN.008

Regina (respondent) v. J.T. (appellant) and Canadian HIV/AIDS Legal Network and British Columbia Persons with AIDS Society (intervenors)

(CA035770; 2008 BCCA 463)

Indexed As: R. v. J.T.

British Columbia Court of Appeal

Donald, Levine and D. Smith, JJ.A.

November 18, 2008.

Summary:

The accused had unprotected sex with the complainant without disclosing that he was HIV positive. The accused was charged with aggravated sexual assault. The Crown alleged that the complainant's consent to sexual activity with the accused was vitiated by fraud. A preliminary inquiry was held and the accused was committed to trial. The committal was affirmed on review. The accused appealed, asserting that the Crown failed to provide evidence that his deception created "a significant risk of serious harm", as that phrase was understood in R. v. Cuerrier (H.G.) (S.C.C.). The Canadian HIV/AIDS Legal Network and British Columbia Persons with AIDS Society intervened seeking clarification as to the scope of the offence of aggravated sexual assault following the judgment in Cuerrier.

The British Columbia Court of Appeal dismissed the appeal.

Editor's note: publication bans imposed pursuant to ss. 517(1) and 539(1) of the Criminal Code are no longer in effect as the trial of this matter ended on May 7, 2010. Certain names in the following case have been initialized or the case otherwise edited by the court to prevent the disclosure of identities where required by a publication ban imposed pursuant to ss. 486(3) (now s. 486.4) and 486.4(1) of the Code.

Criminal Law - Topic 670.2

Sexual offences, public morals and disorderly conduct - Sexual offences, rape or sexual assault - Aggravated sexual assault defined - On four to six occasions, the accused had unprotected anal sex with the complainant without disclosing that he was HIV positive - The accused was charged with aggravated sexual assault - The Crown alleged that the complainant's consent to sexual activity with the accused was vitiated by fraud - At the preliminary inquiry the Crown called Murphy, a specialist in HIV and AIDS related issues who had met with the accused about his condition, and Mathias, an epidemiologist - Murphy classified unprotected anal intercourse as high risk - Mathias testified that, given the viral load and the fact that the accused had been the receptive partner, the risk of HIV transmission was 1.5 in 10,000, about the same as protected anal intercourse where the penetrative partner was HIV positive - The accused asserted that the risk had been negligible and no greater than what the Supreme Court of Canada had decided in R. v. Cuerrier (H.G.) fell below the level which should attract criminal liability - In Cuerrier, the Supreme Court of Canada stated that "... the careful use of condoms might be found to so reduce the risk of harm that it could no longer be considered significant so that there might not be either deprivation or risk of deprivation." - The accused was committed to stand trial - The committal was affirmed on review - The British Columbia Court of Appeal dismissed an appeal - Cuerrier did not set an evidentiary benchmark - Risk was a matter of fact to be assessed on the evidence in every case - The remark in Cuerrier concerning the careful use of condoms provided an illustration of what "might" take the risk below the "significant" level - The language acknowledged that it was a question of evidence whether the risk was significant - Murphy's testimony provided some evidence of a significant risk - It followed that the committal order was correct and the reviewing judge did not err in refusing to set it aside.

Criminal Law - Topic 675

Sexual offences, public morals and disorderly conduct - Sexual offences, rape or sexual assault - Evidence and proof - [See Criminal Law - Topic 670.2 ].

Criminal Law - Topic 3578

Preliminary inquiry - Evidence - Evidence required to be presented - [See Criminal Law - Topic 670.2 ].

Cases Noticed:

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; 162 D.L.R.(4th) 513; 127 C.C.C.(3d) 1, consd. [para. 2].

United States of America v. Shephard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 22].

R. v. Charemski (J.), [1998] 1 S.C.R. 679; 224 N.R. 120; 108 O.A.C. 126; 123 C.C.C.(3d) 225, refd to. [para. 22].

R. v. Skogman, [1984] 2 S.C.R. 93; 54 N.R. 34; 13 C.C.C.(3d) 161, refd to. [para. 24].

Counsel:

J.B. Gratl, for the appellant;

F.G. Tischler, for the respondent;

D.R.P. Eby, for the intervenors.

This appeal was heard at Vancouver, British Columbia, on October 20, 2008, by Donald, Levine and D. Smith, JJ.A., of the British Columbia Court of Appeal. Donald, J.A., delivered the following reasons for judgment for the court on November 18, 2008.

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4 practice notes
  • R. v. Nduwayo (A.S.), 2012 BCCA 281
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 26 d2 Junho d2 2012
    ...2 S.C.R. 168; 78 N.R. 351, refd to. [para. 79]. R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 79]. R. v. J.T. (2008), 288 B.C.A.C. 1; 488 W.A.C. 1; 256 C.C.C.(3d) 246; 2008 BCCA 463, refd to. [para. D.M. Layton, for the appellant; A. Budlovsky, Q.C., for the respondent. Th......
  • R. v. Mabior (C.L.),
    • Canada
    • Court of Appeal (Manitoba)
    • 10 d3 Fevereiro d3 2010
    ...284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 65]. R. v. Jones, 2002 NBQB 340, refd to. [para. 67]. R. v. J.T. (2008), 288 B.C.A.C. 1; 488 W.A.C. 1; 256 C.C.C.(3d) 246; 2008 BCCA 463, disagreed with [para. R. v. Williams (H.L.), [2003] 2 S.C.R. 134; 308 N.R. 235; 231 ......
  • R. v. Wright (M.A.), 2009 BCCA 514
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 21 d3 Outubro d3 2009
    ...[para. 21]. R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 33]. R. v. J.T. (2008), 288 B.C.A.C. 1; 488 W.A.C. 1; 2008 BCCA 463, refd to. [para. R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161;......
  • R. v. Aziga (J.), 2011 ONSC 4592
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 2 d2 Agosto d2 2011
    ...dangerous by recent commissions of inquiry and a quality that is susceptible to leading to wrongful convictions. [108] In R. v. J.T ., 2008 BCCA 463, the British Columbia Court of Appeal held that "...medical science has advanced to the point where (the rate of) transmission (of HIV) ...can......
4 cases
  • R. v. Nduwayo (A.S.), 2012 BCCA 281
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 26 d2 Junho d2 2012
    ...2 S.C.R. 168; 78 N.R. 351, refd to. [para. 79]. R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 79]. R. v. J.T. (2008), 288 B.C.A.C. 1; 488 W.A.C. 1; 256 C.C.C.(3d) 246; 2008 BCCA 463, refd to. [para. D.M. Layton, for the appellant; A. Budlovsky, Q.C., for the respondent. Th......
  • R. v. Mabior (C.L.),
    • Canada
    • Court of Appeal (Manitoba)
    • 10 d3 Fevereiro d3 2010
    ...284; 225 Man.R.(2d) 146; 419 W.A.C. 146; 2008 SCC 2, refd to. [para. 65]. R. v. Jones, 2002 NBQB 340, refd to. [para. 67]. R. v. J.T. (2008), 288 B.C.A.C. 1; 488 W.A.C. 1; 256 C.C.C.(3d) 246; 2008 BCCA 463, disagreed with [para. R. v. Williams (H.L.), [2003] 2 S.C.R. 134; 308 N.R. 235; 231 ......
  • R. v. Wright (M.A.), 2009 BCCA 514
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • 21 d3 Outubro d3 2009
    ...[para. 21]. R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 33]. R. v. J.T. (2008), 288 B.C.A.C. 1; 488 W.A.C. 1; 2008 BCCA 463, refd to. [para. R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161;......
  • R. v. Aziga (J.), 2011 ONSC 4592
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • 2 d2 Agosto d2 2011
    ...dangerous by recent commissions of inquiry and a quality that is susceptible to leading to wrongful convictions. [108] In R. v. J.T ., 2008 BCCA 463, the British Columbia Court of Appeal held that "...medical science has advanced to the point where (the rate of) transmission (of HIV) ...can......

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