R. v. Mabior (C.L.),

• Jurisdiction: Manitoba
• Judge: Steel, MacInnes and Beard, JJ.A.
• Neutral Citation: 2010 MBCA 93
• Citation: (2010), 258 Man.R.(2d) 166 (CA),2010 MBCA 93,[2011] 2 WWR 211,261 CCC (3d) 520,79 CR (6th) 1,[2010] CarswellMan 587,[2010] MJ No 308 (QL),258 Man R (2d) 166,258 Man.R.(2d) 166,[2010] M.J. No 308 (QL),(2010), 258 ManR(2d) 166 (CA),258 ManR(2d) 166
• Date: 10 February 2010
• Court: Court of Appeal (Manitoba)

R. v. Mabior (C.L.) (2010), 258 Man.R.(2d) 166 (CA);

      499 W.A.C. 166

MLB headnote and full text

Temp. Cite: [2010] Man.R.(2d) TBEd. OC.026

Her Majesty The Queen (respondent) v. Clato Lual Mabior (accused/appellant) and Canadian HIV/AIDS Legal Network (intervenor)

(AR 08-30-07036; 2010 MBCA 93)

Indexed As: R. v. Mabior (C.L.)

Manitoba Court of Appeal

Steel, MacInnes and Beard, JJ.A.

October 13, 2010.

Summary:

The accused was charged with aggravated sexual assault involving nine complainants, M.P., K.R., K.G., D.C.S., D.H., S.H., F.L., C.B., and J.L.L. He was also charged with invitation to sexual touching and sexual interference respecting D.C.S., who was 12 at the time of the offences and with forcible confinement respecting J.L.L. The Crown submitted that the accused, with knowledge that he was HIV-positive and despite being in possession of the appropriate safe sex protective information, repeatedly and without proper care engaged in sexual relations with a number of unsuspecting women over a period of more than two years. The accused argued, inter alia, that there was a high probability that he could not have transmitted HIV during the relevant period because of his low or undetectable viral load such that his duty to disclose his condition did not arise since the risk was low or negligible and there was no significant risk of bodily harm to the complainants.

The Manitoba Court of Queen's Bench, in a decision reported at 230 Man.R.(2d) 184, discussed the issues of viral load, infectivity and condom use. In the result, the court convicted the accused of aggravated sexual assault respecting six of the complainants (M.P., K.R., K.G., D.C.S., D.H. and S.H.), and acquitted the accused of aggravated sexual assault respecting three of the complainants (F.L., C.B. and J.L.L.). The accused was also convicted of invitation to sexual touching and sexual interference respecting D.C.S. and acquitted of forcible confinement respecting J.L.L. He was sentenced to a total of 14 years' incarceration. The accused appealed his convictions. The accused argued that the trial judge erred in her credibility findings respecting M.P. and D.C.S. Further, the trial judge erred in applying the factual findings to the legal standard of "significant risk of serious bodily harm" (i.e., the standard required to attach criminal liability to the failure to disclose one's positive HIV status). The Canadian HIV/AIDS Legal Network moved for leave to intervene in the conviction appeal.

The Manitoba Court of Appeal, per MacInnes, J.A., in a decision reported at 245 Man.R.(2d) 81; 466 W.A.C. 81, granted the intervention application. The appeal proceeded.

The Manitoba Court of Appeal held that the law with respect to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of Canada in R. v. Cuerrier (1998), attached criminal liability to the failure to disclose one's positive HIV status only when there was a "significant risk of serious bodily harm". Cuerrier remained the law in 2010. The Court of Appeal held that the trial judge erred in her application of the test of "significant risk of serious bodily harm" to the particular facts of this case, by ruling that a combination of both undetectable viral load and the use of a condom would be required to escape criminal liability. Rather, the determination of "significant risk of serious bodily harm" varied depending on the scientific and medical evidence adduced in each particular case. In this case, the scientific evidence indicated that either the careful use of a condom or effective antiretroviral therapy which reduced viral loads to an undetectable level could potentially reduce the level of risk to below the legal test of "significant risk". Whether in fact the accused could be said to have carefully used a condom or had undetectable viral loads in relation to each of the six complainants was a matter to be determined on an examination of the facts relating to each complainant. Upon examining those facts, the court upheld the aggravated sexual assault convictions respecting M.P. and K.R. finding that there was a significant risk of serious bodily harm involving those complainants. The court, however, allowed the accused's appeals respecting the other four complainants and entered acquittals on those aggravated sexual assault charges. The court held that the trial judge's findings of credibility respecting M.P. and D.C.S. were entitled to deference. The court, therefore, dismissed the appeals from the invitation to sexual touching and sexual interference convictions respecting D.C.S. The court ordered a fresh sentencing hearing on the charges for which convictions were sustained.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise. In this case the editing was done by the court.

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The Manitoba Court of Appeal discussed whether it was criminally fraudulent to lie or fail to disclose one's HIV-positive status to a sexual partner - The court noted that the majority of the Supreme Court of Canada in R. v. Cuerrier (1998), while widening the definition of fraud which vitiated consent in assault cases beyond that of the common law, still required that the dishonesty result in a deprivation consisting of actual harm or a significant risk of serious bodily harm - Therefore, the Court of Appeal stated that "The threat of criminal sanctions attaches only to individuals who know that they are HIV-positive, but who neither inform their sexual partners of this fact nor follow guidelines for safe sex" - See paragraphs 38 to 56.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused, who was HIV-positive, had sex with the six complainants without disclosing his condition and without always using condoms - The accused claimed that he was not infectious during the relevant time period and there was no "significant risk of bodily harm" to the complainants - He was convicted of aggravated sexual assault - The accused appealed - The Manitoba Court of Appeal held that the trial judge erred in her application of the test of "significant risk of serious bodily harm" in this case (i.e., she required evidence of no risk (proper condom use and low viral load) before there would be no criminal liability) - Rather, the law in this regard, as developed by the Supreme Court of Canada in R. v. Cuerrier (1998), attached criminal liability to the failure to disclose one's positive HIV status only when there was a "significant risk of serious bodily harm" - That determination would vary depending on the scientific and medical evidence adduced in each particular case - In this case, the scientific evidence indicated that either the careful use of a condom or effective antiretroviral therapy which reduced viral loads to an undetectable level could potentially reduce the level of risk to below the legal test of "significant risk" - Whether in fact the accused could be said to have carefully used a condom or had undetectable viral loads in relation to each of the six complainants was a matter to be determined on an examination of the facts relating to each complainant - See paragraphs 37 to 118.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The Manitoba Court of Appeal stated that the law with respect to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of Canada in R. v. Cuerrier (1998), attached criminal liability to the failure to disclose one's positive HIV status only when there was a "significant risk of serious bodily harm" - The Court of Appeal stated that the "significant risk of serious bodily harm" test, inevitably, introduced some ambiguity into the nature of the risk of harm - That is, the line between lawful conduct and unlawful conduct could move depending upon the development of the medical science related to HIV/AIDS over the years - The court stated that legal assessments of risk in this area should be consistent with the available medical studies - Further the "significant risk of serious harm" test had to be applied to the facts of each case in order to determine if the consent given in the particular circumstances was vitiated - The result would vary depending upon the application of the test to the facts in each case - See paragraphs 57 to 59.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The Manitoba Court of Appeal stated that the law with respect to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of Canada in R. v. Cuerrier (1998), attached criminal liability to the failure to disclose one's positive HIV status only when there was a "significant risk of serious bodily harm" - The Court of Appeal stated that it could not be disputed that being infected with HIV subjected an individual to "serious bodily harm" - See paragraphs 4 and 60 to 64.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The Manitoba Court of Appeal, in discussing whether it was criminally fraudulent to lie or fail to disclose one's HIV-positive status to a sexual partner, stated that "I [Steel, J.A.] acknowledge that even with the most responsible and careful precautions taken, a condom may break. However, in such circumstances, surely the person with HIV must then disclose his HIV status to enable his non-HIV partner to take prophylactic measures. As noted in R. v. J.A.T. [2010 BCSC], at para. 25, a non-HIV partner can successfully be treated with drugs for one month so long as treatment starts within 72 hours. Obviously then, when a condom breaks, immediately disclosing one's HIV status to a non-HIV partner could reduce the risk of harm. Not disclosing would mean that the risk of harm is equal to that of unprotected sex" - See paragraph 97.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The Manitoba Court of Appeal stated that the law with respect to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of Canada in R. v. Cuerrier (1998), attached criminal liability to the failure to disclose one's positive HIV status only when there was a "significant risk of serious bodily harm" - The court discussed the standard of review to be applied on appeal from a determination by a trial judge of what constituted the "significant risk of serious bodily harm" - The court stated that there were two components involved - First the trial judge had to make certain factual determinations, which were entitled to deference, absent palpable and overriding error - Second, the judge had to apply a legal standard to the facts of the case, which was a question of law - Thus, on appeal, absent palpable and overriding error, the facts as found by the trial judge were to be accepted - Whether those facts, as found by the trial judge, amounted at law to "significant risk of serious bodily harm" was a question of law and was reviewable on the standard of correctness - See paragraphs 4 and 37.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The Manitoba Court of Appeal stated that in 2010 the test with respect to aggravated sexual assault and the transmission of HIV, remained as developed by the Supreme Court of Canada in R. v. Cuerrier (1998), which attached criminal liability to the failure to disclose one's positive HIV status only when there was a "significant risk of serious bodily harm" - The Court of Appeal noted that issues of condom usage and viral load raised difficulties of proof perhaps not contemplated or even known when the Supreme Court developed the test in Cuerrier - The court opined that in light of those concerns and the developments in science the Supreme Court might wish to consider revisiting the test in Cuerrier to provide all parties with more certainty - Nevertheless, the trial judge erred in this particular case by ruling that a combination of both undetectable viral load and the use of a condom would be required to escape criminal liability - There was no requirement that there be absolutely no risk of transmission to escape liability - In this case, the scientific evidence indicated that either the careful use of a condom or effective antiretroviral therapy which reduced viral loads to an undetectable level could potentially reduce the level of risk to below the legal test of "significant risk" - See paragraphs 147 to 157.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused was medically diagnosed as being HIV-positive January 14, 2004 - He was convicted of aggravated sexual assault for having sexual contact with several complainants between January 2004 and December 2005, without telling them he was HIV-positive - M.P., one of the complainants, engaged in sexual intercourse with the accused on 10 to 15 occasions between February and April, 2004 - She claimed that a condom was used on at least two occasions - Her memory was impacted by intoxication - The accused appealed, claiming that because of his low viral load during the relevant time period that there was a very high probability that he was not infectious and there was no significant risk of serious bodily harm to M.P. - The Manitoba Court of Appeal dismissed the appeal with respect to M.P. - According to the expert evidence respecting the accused's viral load count at the relevant time, the accused had "probably low but possible infectivity" - Further, the accused tested positive for gonorrhea during that time - The court therefore agreed with the trial judge that a significant risk of harm existed during the instances of unprotected sex with M.P. - See paragraphs 119 and 120.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused was medically diagnosed as being HIV-positive January 14, 2004 - He was convicted of aggravated sexual assault for having sexual contact with several complainants between January 2004 and December 2005, without telling them he was HIV-positive - K.R., one of the complainants, had sexual relations with the accused from April to November 2004 - Condoms were used, but broke on at least three occasions - The accused appealed his conviction, claiming that because of his low viral load during the relevant time period that there was a very high probability that he was not infectious and there was no significant risk of serious bodily harm to K.R. - The Manitoba Court of Appeal dismissed the conviction appeal respecting K.R. - The court stated that once the condom broke, the complainant became exposed to the risk of transmission and was entitled, at that point in time, to disclosure of the accused's serostatus so that she could, if she chose to, take prophylactic measures - The court noted that early on, the accused's viral load was consistent with low, but possible infectivity, and later in the relationship his viral load was undetectable - However, given the increased risk factors, including the fact that he had a higher viral load during the first part of his relationship, he was involved with multiple partners and he was listed as a chlamydia contact by another woman during this period, the court agreed with the trial judge that a significant risk of harm existed in relation to K.R. - See paragraphs 121 and 122.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused was medically diagnosed as being HIV-positive January 14, 2004 - He was convicted of aggravated sexual assault for having sexual contact with several complainants between January 2004 and December 2005, without telling them he was HIV-positive - K.G., one of the complainants, had sexual relations with the accused on one occasion in June 2004 - Although intoxicated at the time, she was "pretty sure" a condom was used - The trial judge convicted the accused, referring to the "only 80% effectiveness rate of condoms" - The accused appealed - The Manitoba Court of Appeal held that the trial judge erred in the assessment of risk and condom use - The court stated that generally, consistent and careful use of good quality condoms reduced risk to below a significant level - Given the complainant's evidence as to the use of a condom in this particular instance and the medical evidence as to the effect of condom use on the risk of transmission, the court found that there was no significant risk of serious bodily harm with respect to K.G. - The court allowed the appeal and substituted an acquittal - See paragraphs 123 to 126.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused was medically diagnosed as being HIV-positive January 14, 2004 - He was convicted of aggravated sexual assault for having sexual contact with several complainants between January 2004 and December 2005, without telling them he was HIV-positive - There was expert evidence that between October 2004 and December 2005 the accused had low (undetectable) viral loads and that there was a high probability that the accused was not infectious, i.e., could not have transmitted HIV throughout this period - S.H., one of the complainants, had a number of sexual encounters with the accused between February and April 2005 - They had protected sex during the first week of their relationship, but unprotected intercourse thereafter - The trial judge acknowledged that at the time of their relationship, the accused's viral load was suppressed, but found him guilty because the expert evidence did not show that the risk was completely eliminated - The accused appealed - The Manitoba Court of Appeal allowed the appeal and acquitted the accused - The court held that the test was not "no risk", but the presence of significant risk, which the Crown had not proven in light of the expert evidence in this case - See paragraphs 127 to 130.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused was medically diagnosed as being HIV-positive January 14, 2004 - He was convicted of aggravated sexual assault for having sexual contact with several complainants between January 2004 and December 2005, without telling them he was HIV-positive - There was expert evidence that between October 2004 and December 2005 the accused had low (undetectable) viral loads and that there was a very high probability that the accused was not infectious, i.e., could not have transmitted HIV throughout this period - Starting in August, 2005, the accused had sexual intercourse with D.C.S., one of the complainants (age 12) on numerous occasions - She could not remember if condoms were used every time, but they were not used the first time - She continued to have sex with the accused after she learned from a third party that he was HIV-positive - The accused appealed - The Manitoba Court of Appeal allowed the appeal and acquitted the accused - The court stated that although there was unprotected sex, the specific evidence with respect to the particular circumstances of the accused showed that he was at a very low risk of transmitting the infection at the relevant time period - Also shortly before the relationship began he tested negative for gonorrhea and chlamydia - The Crown failed to prove significant risk of serious bodily harm - The court, however, did not disturb the convictions for sexual interference and invitation to sexual touching involving D.C.S. - See paragraphs 127 and 131 to 133.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused was medically diagnosed as being HIV-positive January 14, 2004 - He was convicted of aggravated sexual assault for having sexual contact with several complainants between January 2004 and December 2005, without telling them he was HIV-positive - There was expert evidence that between October 2004 and December 2005 the accused had low (undetectable) viral loads and that there was a high probability that the accused was not infectious, i.e., could not have transmitted HIV throughout this period - D.H., one of the complainants, had a sexual relationship with the accused commencing before Christmas 2005, at a point when the accused's viral load would have been undetectable - Condom use was inconsistent - Gonorrhea and chlamydia tests in February 2006 were negative - The accused appealed - The Manitoba Court of Appeal allowed the appeal and substituted an acquittal - The court held that although unprotected intercourse occurred, the Crown could not prove that a significant risk of harm existed with respect to D.H. - See paragraphs 127 and 134 to 137.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused was convicted of aggravated sexual assault respecting M.P., for having sexual intercourse with her on several occasions without disclosing his HIV-positive status - M.P. claimed that a condom was used on at least two occasions - Her memory was impacted by intoxication - The accused appealed, arguing that the trial judge erred in her credibility findings because of unexplained inconsistencies in the complainant's testimony - The Manitoba Court of Appeal rejected this ground of appeal, holding that it was open to the trial judge to make the findings she did - They were reasonable on the evidence and she made no error in the assessment of the evidence - See paragraphs 28 to 31.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused was convicted of aggravated sexual assault respecting D.C.S. for having sexual contact with her sexual on several occasions without disclosing his HIV-positive status - D.C.S. was 12 years old when the contact began - She could not remember if condoms were used every time, but they were not used the first time - She continued to have sex with the accused after she learned from a third party that he was HIV-positive - The accused was also convicted of sexual interference and invitation to sexual touching - The accused appealed, arguing that the trial judge erred in her credibility findings because of unexplained inconsistencies in the complainant's testimony - The Manitoba Court of Appeal held that the trial judge's credibility findings were entitled to deference; therefore, the appeals respecting the convictions for sexual interference and invitation to sexual touching were dismissed - The aggravated sexual assault conviction was set aside for other reasons - See paragraphs 32 to 36.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - The accused appealed his aggravated sexual assault convictions (Criminal Code, s. 273(1)) for having sexual contact with several complainants without disclosing his HIV-positive status - Section 273(1) provided that an aggravated sexual assault existed when the accused "...  wounds, maims, disfigures or endangers the life of the complainant" - The Manitoba Court of Appeal, in obiter, noted that wounding, maiming or disfiguring differed significantly from endangering life - The first three consequences involved the causing of serious bodily harm, whereas endangering life could exist without any bodily harm actually occurring to the victim - The court noted that at one time a diagnosis of HIV was considered akin to an inevitable death sentence making proof of "endangerment of life" obvious; however, with medical advances, an expert reported that many if not most persons infected with HIV who received and were compliant with optimal care would die of non-AIDS causes - Therefore, from a legal standpoint, the court wondered whether, if there was a risk of serious bodily harm, did it necessarily follow that there was also endangerment of life (i.e., were the two tests the same?) - The court noted that while many of the cases dealing with that issue had held that the tests were the same, the court suggested that "endangerment of life" and "serious bodily harm" were two different standards - The court stated that not all serious injuries necessarily put a victim's life in peril or at risk - However, since this issue was not raised in this case, the court left it for argument in a future case - See paragraphs 138 to 146.

Criminal Law - Topic 670.2

Sexual offences - Rape or sexual assault - Aggravated sexual assault defined - [See Criminal Law - Topic 666 ].

Criminal Law - Topic 706

Sexual offences - Particular offences - Sexual interference with young person - [See eleventh and fourteenth Criminal Law - Topic 670.2 ].

Criminal Law - Topic 708

Sexual offences - Particular offences - Inviting sexual touching - [See eleventh and fourteenth 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, appld. [para. 2].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 23].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51, refd to. [para. 23].

R. v. Sinclair (T.) (2009), 240 Man.R.(2d) 135; 456 W.A.C. 135; 2009 MBCA 71, leave to appeal granted (2010), 406 N.R. 391 (S.C.C.), refd to. [para. 24].

R. v. Oddleifson (J.N.) (2010), 255 Man.R.(2d) 68; 486 W.A.C. 68; 256 C.C.C.(3d) 317; 2010 MBCA 44, refd to. [para. 24].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 24].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 24].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 37].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 37].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 40].

R. v. Hutchinson (C.) (2010), 286 N.S.R.(2d) 331; 909 A.P.R. 331; 251 C.C.C.(3d) 51; 2010 NSCA 3, refd to. [para. 47].

R. v. J.A.T., [2010] B.C.T.C. Uned. 766; 2010 BCSC 766, refd to. [para. 58].

R. v. C.L.Y., [2008] 1 S.C.R. 5; 370 N.R. 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. 69].

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. 72].

R. v. Wright (M.A.) (2009), 287 B.C.A.C. 1; 485 W.A.C. 1; 256 C.C.C.(3d) 254; 2009 BCCA 514, leave to appeal dismissed (2010), 407 N.R. 396 (S.C.C.), refd to. [para. 76].

R. v. Edwards (J.R.) (2001), 194 N.S.R.(2d) 107; 606 A.P.R. 107; 2001 NSSC 80, refd to. [para. 76].

R. v. Agnatuk-Mercier, [2001] O.J. No. 4729 (Sup. Ct.), refd to. [para. 81].

R. v. Nduwayo (A.S.), [2006] B.C.T.C. Uned. C09; 2006 BCSC 1972, refd to. [para. 81].

R. v. Smith, [2007] S.J. No. 116 (Prov. Ct.), refd to. [para. 81].

Police v. Dalley (2005), 22 C.R.N.Z. 495 (D.C.), refd to. [para. 86].

R. v. Hutchinson (C.) (2009), 275 N.S.R.(2d) 128; 877 A.P.R. 128; 2009 NSSC 51, refd to. [para. 87].

R. v. MacNeil (J.P.) (2009), 277 N.S.R.(2d) 22; 882 A.P.R. 22; 244 C.C.C.(3d) 88; 2009 NSCA 46, refd to. [para. 126].

R. v. Harwood-Jones (P.H.) (2009), 247 Man.R.(2d) 184; 2009 MBQB 313, refd to. [para. 145].

Rawlings v. Lindsay (1982), 20 C.C.L.T. 301 (B.C.S.C.), refd to. [para. 150].

Harris v. Beck Estate (2009), 284 Nfld. & P.E.I.R. 29; 875 A.P.R. 29; 2009 PECA 8, refd to. [para. 150].

R. v. Thornton (1991), 42 O.A.C. 206; 1 O.R.(3d) 480 (C.A.), refd to. [para. 155].

R. v. Mercer (R.H.) (1993), 110 Nfld. & P.E.I.R. 41; 346 A.P.R. 41; 84 C.C.C.(3d) 41 (Nfld. C.A.), refd to. [para. 157].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 237(1) [para. 38].

Authors and Works Noticed:

Benedet, Janine, Annotation to R. v. Gagnon (L.) (2008), 37 C.R.(6th) 209, p. 212 [para. 23].

Boily, Marie-Claude, Baggaley, Rebbeca F., Wang, Lei, Mase, Benoit, White, Richard G., Hayes, Richard J., and Alary, Michel, Heterosexual risk of HIV-1 infection per sexual act: systematic review and meta-analysis of observational studies (2009), 9 Lancet Infect. Dis. 118, generally [para. 77].

Ewaschuk, Eugene G., Criminal Pleadings and Practice in Canada (2nd Ed.) (2010 Looseleaf Update), vol. 3, para. 23:10120 [para. 126].

Ferguson, Gerry, Failure to Disclose HIV-Positive Status and Other Unresolved Issues in Williams (2004), 20 C.R.(6th) 42, p. 52 [para. 140].

Ginn, Diana, Can Failure to Disclose HIV Positivity to Sexual Partners Vitiate Consent? R. v. Cuerrier (2000), 12 Can. J. Women & L. 235, generally [para. 49].

Grant, Isabel, Rethinking Risk: The Relevance of Condoms and Viral Load in HIV Nondisclosure Prosecutions (2009), 54 McGill L.J. 389, p. 396 [para. 53].

Grant, Isabel, The Boundaries of the Criminal Law: The Criminalization of the Non-disclosure of HIV (2008), 31 Dalhousie L.J. 123, pp. 159 [para. 148]; 176 [para. 49]; 177, fn. 193 [para. 49].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 185 [para. 150].

Mykhalovskiy, Eric, Betteridge, Glenn, and McLay, David, HIV Non-Disclosure and the Criminal Law: Establishing Policy Options for Ontario (2010), p. 32 [para. 88].

Weller, S.C., and Davis-Beaty, K., Condom effectiveness in reducing heterosexual HIV transmission, Cochrane Database of Systematic Reviews 2002, Issue I, Art. No.: CD003255. DOI: 10.1002/14651858.CD003255, generally [para. 83].

Counsel:

I.N. MacNair, for the appellant;

E.A. Thomson and W.E. Friesen, for the respondent;

D.M. Olson, for the intervenor.

This appeal was heard on February 10, 2010, before Steel, MacInnes and Beard, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following decision for the Court of Appeal on October 13, 2010.