Ami Kotler

The appellant Crown appealed acquittals entered after a criminal prosecution for aggravated sexual assault based on non-disclosure of HIV-positive status.

The Court reaffirmed that fraud vitiating consent under ss. 265(3)(c) and 273 requires a dishonest act and deprivation, and held that deprivation turns on whether there was a realistic possibility of HIV transmission.

The Court held that, on the record, a realistic possibility is negated where the accused had a low viral load and condom protection was used.

Applying that test, the Court restored three convictions where no condom was used and maintained one acquittal where condom use accompanied a low viral load.

The appeal was allowed in part.

In a criminal appeal from Manitoba, the appellant challenged a first degree murder conviction involving murder while committing sexual assault, arguing deficiencies in the jury charge.

The Court held that the trial judge adequately related the evidence to the offence elements and that the charge, read as a whole, properly explained the live issues and the defence theory.

The Court further held that a trial judge need not present speculative, fanciful, or far-fetched factual scenarios not advanced by counsel.

The appeal was dismissed, adopting the majority reasons of the provincial appellate court.