R. v. Nduwayo (A.S.), 2012 BCCA 281

• Judge: Levine, Tysoe and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 26, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 281;(2012), 323 B.C.A.C. 249 (CA)

R. v. Nduwayo (A.S.) (2012), 323 B.C.A.C. 249 (CA);

    550 W.A.C. 249

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. JL.041

Regina (respondent) v. Adrian Sylver Nduwayo (appellant)

(CA038511; 2012 BCCA 281)

Indexed As: R. v. Nduwayo (A.S.)

British Columbia Court of Appeal

Levine, Tysoe and Bennett, JJ.A.

June 26, 2012.

Summary:

The accused, knowing that he carried the HIV virus, had unprotected sexual intercourse with five women without disclosing this fact. Two of the five contracted the HIV virus. The accused was convicted of five counts of aggravated sexual assault. The accused appealed two of the convictions: (1) respecting L.A., who did not contract HIV and (2) D.D., who did contract HIV. The accused argued (respecting the L.A. conviction) that the trial judge misapprehended material evidence respecting the reduced risk of HIV transmission where the accused had a low viral load and that the judge's reasons respecting the impact of a low viral load on the risk of HIV transmission were insufficient. The accused argued (respecting the D.D. conviction) that the trial judge erred by taking into account the fact that D.D. contracted HIV in determining that the second aspect of fraud vitiating consent (deprivation) was met by actual harm or the risk of significant seriously bodily harm.

The British Columbia Court of Appeal dismissed the appeal.

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.

Courts - Topic 583

Judges - Duties - Re reasons for decisions (incl. notes) - [See Criminal Law - Topic 4957 ].

Criminal Law - Topic 666

Sexual offences - Rape or sexual assault - Consent and extorted consent - The accused, knowing that he carried the HIV virus, had unprotected sexual intercourse on one occasion with D.D., without disclosing that he was HIV positive - D.D. contracted the HIV virus - The accused was convicted of aggravated assault, as D.D.'s consent to sexual intercourse was vitiated by the accused's fraud - The accused appealed, arguing that the trial judge decided his guilt based on "actual" harm to D.D., when he was limited to considering whether there was a significant "risk" of serious bodily harm - The British Columbia Court of Appeal dismissed the appeal - The elements of fraud were dishonesty and deprivation - Deprivation included actual harm and a risk of harm - The accused's argument, that he was guilty if there was a significant risk of bodily harm but not if there was actual harm unless that risk was proved, was absurd - The court held that "where a person suffers actual harm in the form of contracting HIV, the element of deprivation is satisfied" - See paragraphs 83 to 93.

Criminal Law - Topic 1422

Assaults - Defence - Consent - [See Criminal Law - Topic 666 ].

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - [See Criminal Law - Topic 4957 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - The accused, knowing that he carried the HIV virus, had unprotected sexual intercourse on seven occasions with L.A., without disclosing that he was HIV positive - L.A. did not contract the HIV virus - There was expert statistical evidence of a lower risk of transmission of the virus where the infected male's viral load was lower - The accused appealed his conviction for aggravated sexual assault on the ground that the verdict was unreasonable, because no reasonable trier of fact could have found a significant risk of bodily harm to L.A. given the accused's low viral load - The British Columbia Court of Appeal dismissed the appeal, stating that "despite the evidence of reduction of risk due to improved medications, there was evidence in this case to support the finding of the trial judge. [The accused] had a low viral load when he had unprotected sexual intercourse with L.A. While his viral load was not high, neither was it undetectable. Dr. Conway testified that [the accused's] immune system was compromised and he was still infectious during this time. The risk of infection increased with each event of unprotected sexual intercourse, of which the trial judge found there were at least seven. Considering the totality of the evidence, the trial judge could reasonably conclude ... that [the accused's] conduct created a significant risk of serious bodily harm to L.A." - See paragraphs 78 to 82.

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - The accused, knowing that he carried the HIV virus, had unprotected sexual intercourse on seven occasions with L.A., without disclosing that he was HIV positive - L.A. did not contract the HIV virus - There was expert statistical evidence of a lower risk of transmission of the virus where the infected male's viral load was lower - A portion of the trial judge's reasons misstated that statistical evidence - The accused appealed his conviction for aggravated sexual assault, arguing that there was a material misapprehension of the expert evidence, which went to the core of the trial judge's reasoning process, and that the judge's reasons were insufficient - The British Columbia Court of Appeal dismissed the appeal - The misstatement of the statistical evidence did not affect the core of the judge's reasoning process - The judge's reasons showed that he assessed the degree of risk qualitatively rather than quantitatively - The judge, in determining the risk of significant bodily harm, noted that there were many variables (viral load, number of instances of unprotected sexual intercourse, lesions, sores, etc.), and held that the assessment of risk was not simply an exercise in calculation based on statistics - The judge stated that "the answer to the question of what is the degree or risk - is it significant - is a matter of fact and is for the trier of fact to determine. In my view, given the great seriousness of the possible harm and the core importance of the notion of bodily integrity, that persons should be entitled to know the risks and dangers to which they are exposed and make critical decisions in an informed way, the threshold should not be set at a high level. Certainly a minor or insignificant degree of risk will not suffice. But, by the same token, it will not be necessary to find that the chances of infection are high or likely in order to conclude that the deprivation is made out and that the consent is vitiated." - The court held that the judge did not place great reliance on the expert's statistics and they did not play an essential role in his reasoning process - The reasons for judgment were sufficient, as they explained why the accused was convicted or acquitted on each count, provided public accountability and permitted meaningful appellate review - Notwithstanding the accused's low viral loads, he was convicted because seven instances of unprotected sexual intercourse were sufficient to establish a significant risk of serious bodily harm - See paragraphs 57 to 79.

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, refd to. [para. 5].

R. v. Olan, Hudson and Harnett, [1978] 2 S.C.R. 1175; 21 N.R. 504, refd to. [para. 51].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 51].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C. 161, refd to. [para. 51].

R. v. Bennett (1866), 4 F. & F. 1105; 176 E.R. 925, refd to. [para. 52].

R. v. Sinclair (1867), 13 Cox C.C. 28, refd to. [para. 52].

State v. Lankford (1917), 102 A. 63 (Del. Ct. Gen. Sess.), refd to. [para. 52].

R. v. Clarence (1888), 22 Q.B.D. 23, refd to. [para. 52].

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. 58].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 58].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 66].

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. 66].

R. v. Wright (M.A.) (2009), 287 B.C.A.C. 1; 485 W.A.C. 1; 2009 BCCA 514, refd to. [para. 78].

R. v. Mabior (C.L.) (2010), 258 Man.R.(2d) 166; 499 W.A.C. 166; 261 C.C.C.(3d) 520 (C.A.), leave to appeal granted (2011), 422 N.R. 399 (S.C.C.), refd to. [para. 78].

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. 79].

R. v. Yebes, [1987] 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. 80].

Counsel:

D.M. Layton, for the appellant;

A. Budlovsky, Q.C., for the respondent.

This appeal was heard on December 8, 2011, at Vancouver, B.C., before Levine, Tysoe and Bennett, JJ.A., of the British Columbia Court of Appeal.

On June 26, 2012, Bennett, J.A., delivered the following judgment for the Court of Appeal.