R. v. Wright (M.A.), 2009 BCCA 514

• Judge: Levine, Kirkpatrick and Tysoe, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 21, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 514;(2009), 287 B.C.A.C. 1 (CA)

R. v. Wright (M.A.) (2009), 287 B.C.A.C. 1 (CA);

    485 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. JN.009

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

(CA036415; 2009 BCCA 514)

Indexed As: R. v. Wright (M.A.)

British Columbia Court of Appeal

Levine, Kirkpatrick and Tysoe, JJ.A.

November 19, 2009.

Summary:

The accused appealed his conviction by a jury on two of three counts of aggravated sexual assault. The accused was HIV positive. It was alleged that he failed to disclose this fact before he had sexual relations with the three complainants and that, as a result, their consent to the sexual relations was vitiated.

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 s. 486.4(1) of the Criminal Code.

Criminal Law - Topic 675

Sexual offences, public morals and disorderly conduct - Sexual offences - Rape or sexual assault - Evidence and proof - [See Criminal Law - Topic 4352 , Criminal Law - Topic 4379 and Criminal Law - Topic 4399.6 ].

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions on evidence generally - The accused appealed his conviction by a jury on two of three counts of aggravated sexual assault (against P.S., D.C. and C.N.) - The accused was HIV positive - It was alleged that he failed to disclose this fact before he had sexual relations with the three complainants and that, as a result, their consent to the sexual relations was vitiated - The accused asserted that the trial judge should have instructed the jury that, if it had a reasonable doubt as to whether the accused wore a condom during his sexual intercourse with D.C., it was required to acquit him in respect of that count - The British Columbia Court of Appeal dismissed the appeal - Use of a condom would not preclude a finding of a significant risk of bodily harm - It was a question of fact in each case for the trier of fact to determine whether the use of a condom had reduced the risk of HIV transmission to a level that did not represent a risk of serious bodily harm - In this case, the trial judge left it to the jury to determine whether the potential use of a condom in the sexual intercourse with D.C. raised a reasonable doubt as to whether there had been a significant risk of bodily harm - The trial judge did not err in that regard - See paragraphs 35 to 40.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused appealed his conviction by a jury on two of three counts of aggravated sexual assault - The accused was HIV positive - It was alleged that he failed to disclose this fact before he had sexual relations with the three complainants and that, as a result, their consent to the sexual relations was vitiated - The accused asserted that the trial judge should have instructed the jury to disregard Dr. Conway's testimony about the unreliability of reports from HIV-infected persons in assessing the accused's credibility - The British Columbia Court of Appeal dismissed the appeal - There was no need for the trial judge to give a cautioning instruction with respect to this evidence - No reasonable juror would have interpreted Dr. Conway's comments to suggest that the accused would not be reliable or credible in giving his testimony because he was HIV-positive - The trial judge did not err in failing to give the jury a special instruction with respect to Dr. Conway's comments about the reliability of reports concerning the potential sources of HIV infection, the use of condoms and details of sexual activity - See paragraphs 41 to 50.

Criminal Law - Topic 4399.6

Procedure - Charge or directions - Jury or judge alone - Directions re elements of offences (incl. time) - The accused appealed his conviction by a jury on two of three counts of aggravated sexual assault - The accused was HIV positive - It was alleged that he failed to disclose this fact before he had sexual relations with the three complainants and that, as a result, their consent to the sexual relations was vitiated - The accused asserted that the trial judge should not have effectively told the jury that Dr. Conway was of the opinion that any exposure to the HIV virus through sexual contact created a significant risk of serious bodily harm - The British Columbia Court of Appeal dismissed the appeal - The trial judge did not say that Dr. Conway expressed the opinion that any exposure to the HIV virus through sexual conduct created a "significant" risk of serious bodily harm - He said any exposure created "some risk, some endangerment to life" - The judge did not misstate Dr. Conway's opinion - In testifying about the various factors affecting the risk of transmission, Dr. Conway spoke about reduction of the risk but he never said the risk was eliminated - In addition, a reasonable juror would not have understood the judge to have equated "some" risk to a "significant" risk - The judge did not misdirect the jury with respect to Dr. Conway's opinion - See paragraphs 51 to 58.

Criminal Law - Topic 4440

Procedure - Verdicts - Discharges and dismissals - Directed verdicts - The accused appealed his conviction by a jury on two of three counts of aggravated sexual assault - The accused was HIV positive - It was alleged that he failed to disclose this fact before he had sexual relations with the three complainants and that, as a result, their consent to the sexual relations was vitiated - The accused asserted that the trial judge should not have dismissed his application for a directed verdict - The British Columbia Court of Appeal dismissed the appeal - The live issue at trial was related to consent - Consent would be vitiated if the accused was dishonest regarding his HIV positive status that had the effect of exposing the complainant to a significant risk of bodily harm - When the application for a directed acquittal verdict was made, it was not the function of the trial judge to weigh the evidence and make findings of fact and to then decide whether a reasonable doubt as to the accused's guilt existed on the basis of those findings - The test on such an application was whether there was any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict - There was such evidence - The jury had the expert evidence of Dr. Conway that the average risk of HIV transmission through unprotected sex was 0.5% - That evidence was sufficient for a jury to have been satisfied beyond a reasonable doubt that the risk of HIV transmission represented a significant risk to the complainants of serious bodily harm - After the Crown introduced the evidence of the average risk of HIV transmission, it was open to the accused, if he wished, to introduce evidence about his own viral load - This did not represent a shift in the legal burden of proof but, rather, it was a tactical decision for the accused to make on the basis of his assessment of the Crown's case - There was some evidence introduced during the Crown's case upon which a reasonable jury, properly instructed, could have concluded that it had been proven beyond a reasonable doubt that the risk of HIV transmission from the accused to each of the complainants represented a significant risk of serious bodily harm - The trial judge did not err in dismissing the accused's application for a directed verdict - See paragraphs 19 to 34.

Cases Noticed:

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. 19].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 157 C.C.C.(3d) 21; 2001 SCC 54, refd to. [para. 19].

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; 127 C.C.C.(3d) 1, consd. [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. 38].

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; 113 C.C.C.(3d) 1, refd to. [para. 49].

Counsel:

D.M. Layton, for the appellant;

F.G. Tischler, for the respondent;

M.J. Bozic, for the intervenors.

This appeal was heard on October 21, 2009, at Vancouver, British Columbia, by Levine, Kirkpatrick and Tysoe, JJ.A., of the British Columbia Court of Appeal. The following reasons for judgment of the Court of Appeal were delivered by Tysoe, J.A., on November 19, 2009.