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.
