R. v. Williams (H.L.), (2003) 308 N.R. 235 (SCC)

• Judge: McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 03, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2003), 308 N.R. 235 (SCC);2003 SCC 41;308 NR 235;13 CR (6th) 240;231 Nfld & PEIR 1;176 CCC (3d) 449;230 DLR (4th) 39;[2003] SCJ No 41 (QL);[2003] 2 SCR 134

R. v. Williams (H.L.) (2003), 308 N.R. 235 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] N.R. TBEd. SE.007

Her Majesty the Queen (appellant) v. Harold Williams (respondent) and Attorney General of Ontario (intervener)

(28873; 2003 SCC 41; 2003 CSC 41)

Indexed As: R. v. Williams (H.L.)

Supreme Court of Canada

McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps, JJ.

September 18, 2003.

Summary:

An accused was charged with aggravated as­sault, criminal negligence causing bodily harm and common nuisance.

The Newfoundland Supreme Court, Trial

Division, in a decision reported at 189 Nfld. & P.E.I.R. 156; 571 A.P.R. 156, convicted the accused of aggravated assault and com­mon nuisance and acquitted him on the charge of criminal negligence causing bodily harm. The accused appealed the convictions.

The Newfoundland Court of Appeal, Wells, C.J.N., dissenting in part, in a deci­sion reported at 205 Nfld. & P.E.I.R. 1; 615 A.P.R. 1, affirmed the nuisance conviction, set aside the conviction for aggravated assault and convicted the accused of attempted aggravated assault. The Crown appealed.

The Supreme Court of Canada affirmed the convictions for attempted aggravated assault and common nuisance and dismissed the Crown's appeal.

Criminal Law - Topic 829

Sexual offences, public morals and dis­orderly conduct - Nuisances - Common nuisance - An accused was engaged in a sexual relationship with the complainant when he became aware that he was HIV-positive - The accused did not tell the complainant and continued to have unpro­tected sex with her - The complainant was subsequently diagnosed HIV-positive - The trial judge convicted the accused of, inter alia, common nuisance where he had failed to discharge a legal duty (i.e. disclosing that he was HIV-positive) and had endan­gered the lives, safety and health of the public (Criminal Code, s. 180(1)) - The Supreme Court of Canada affirmed the conviction - See paragraph 71.

Criminal Law - Topic 1415

Assaults - Aggravated assault - The Supreme Court of Canada stated that the requirements of an aggravated assault under s. 268(1) of the Criminal Code included those of the assault itself plus wounding, maiming, disfiguring or endan­gering the complainant's life - The pros­ecution had to establish all of the elements of an assault plus the aggravating circum­stance - The "aggravation" came from the consequences of the assault - The same act of sexual assault might injure or put at risk many potential partners but if, because of a complainant's particular circumstances, she was not put in harm's way by the assault charged, there was no aggravated assault - Although there were several provisions of the Code that differentiated charges on the basis of the nature of the assault, s. 268 was not one of them - Sec­tion 268 directed the court to focus on the consequences - If the Crown wished to allege an offence predicated on an aggra­vating consequence, it had to prove the consequence beyond a reasonable doubt - See paragraphs 41 to 58.

Criminal Law - Topic 1415

Assaults - Aggravated assault - An accused was engaged in a sexual relationship with the complainant when he became aware that he was HIV-positive - The accused did not tell the complainant and continued to have unprotected sex with her - The complainant was subsequently diagnosed HIV-positive - The Newfoundland Court of Appeal acquitted the accused of aggravated assault - Although the accused's fraud invalidated the complainant's consent, there was a reasonable doubt that he en­dangered the complainant's life where it was likely that he had infected her prior to his becoming aware that he was HIV positive - However, the court convicted the accused of attempted aggravated assault - The fact that the accused attempted to do something that, for purposes of proof, turned out to be impossible, did not release him from culpability - The Supreme Court of Canada dismissed an appeal - Failure to prove endangerment of life was fatal to the aggravated assault charge - The accused was properly convicted of attempted aggra­vated assault where the actus reus of ag­gravated assault was "present in an incom­plete but more-than-merely-preparatory way".

Criminal Law - Topic 1422

Assaults - Defence - Consent - [See second Criminal Law - Topic 1415 ].

Criminal Law - Topic 2627

Attempts, conspiracies, accessories and parties - Attempts - What constitutes an attempt - [See second Criminal Law - Topic 1415 ].

Criminal Law - Topic 2628

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

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. 18].

R. v. Godin (J.A.), [1994] 2 S.C.R. 484; 168 N.R. 193; 147 N.B.R.(2d) 321; 375 A.P.R. 321, refd to. [para. 22].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 27].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 27].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209, refd to. [para. 35].

R. v. Droste (1979), 49 C.C.C.(2d) 52 (Ont. C.A.), refd to. [para. 35].

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. 37].

R. v. Leclerc (1991), 50 O.A.C. 232; 67 C.C.C.(3d) 563 (C.A.), refd to. [para. 42].

R. v. Brodie (C.A.) (1995), 60 B.C.A.C. 153; 99 W.A.C. 153 (C.A.), refd to. [para. 43].

R. v. Dewey (M.R.) (1998), 232 A.R. 143; 195 W.A.C. 143; 132 C.C.C.(3d) 348 (C.A.), refd to. [para. 43].

R. v. Ross (W.P.) et al. (1998), 74 O.T.C. 202 (Gen. Div.), refd to. [para. 43].

R. v. Vang (L.T.) and Chanthaboury (P.) (1999), 118 O.A.C. 75; 132 C.C.C.(3d) 32 (C.A.), refd to. [para. 43].

R. v. DeSousa, [1992] 2 S.C.R. 944; 142 N.R. 1; 56 O.A.C. 109, refd to. [para. 44].

R. v. Ancio, [1984] 1 S.C.R. 225; 52 N.R. 161; 2 O.A.C. 124, refd to. [para. 62].

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. 65].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 24(1), sect. 265(1)(a) [para. 61]; sect. 268(1) [para. 41]; sect. 660 [para. 61].

Counsel:

Rachel Huntsman, for the appellant;

Derek J. Hogan, for the respondent;

Susan Chapman and Dana Peterson, for the intervener.

Solicitors of Record:

Department of Justice, St. John's, New­foundland and Labrador, for the appel­lant;

Newfoundland Legal Aid Commission, St. John's, Newfoundland and Labrador, for the respondent;

Ministry of the Attorney General of Ontario, Toronto, Ontario, for the intervener.

This appeal was heard on December 3, 2002, by McLachlin, C.J.C., Iacobucci, Major, Bastarache, Binnie, Arbour and Deschamps, JJ., of the Supreme Court of Canada. Binnie, J., delivered the following judgment for the court in both official lan­guages on September 18, 2003.