Derek J. Hogan

Crown appeal from the Newfoundland and Labrador Court of Appeal's decision to quash convictions for sexual assault and forcible confinement of a minor and order a new trial.

The majority of the Court of Appeal had held that the trial judge erred in rejecting the evidence of the accused's son and in misapprehending the trial evidence as a whole.

The Supreme Court of Canada allowed the appeal for the reasons given by Hoegg J.A. in dissent below, restoring the trial convictions.

Fish and Cromwell JJ. dissented, favouring affirmation of the new trial order.

The accused had an 18-month relationship with the complainant, during which they engaged in unprotected sexual intercourse.

Five months into the relationship, the accused learned he was HIV-positive but failed to disclose this to the complainant.

The complainant later tested positive for HIV.

The Crown conceded it was possible the complainant was infected before the accused learned of his status.

The Supreme Court of Canada held that the accused could not be convicted of aggravated assault because the Crown could not prove beyond a reasonable doubt that his post-knowledge conduct endangered her life, as she was likely already infected.

However, the Court upheld his conviction for attempted aggravated assault, finding he had the requisite intent and took more than preparatory steps.

The appellant appealed a conviction, arguing the trial judge erred in commenting to the jury on the accused's failure to call a private investigator as a witness.

The Supreme Court of Canada agreed with the Court of Appeal that the trial judge's comment was an error.

However, the Court concluded that no substantial wrong or miscarriage of justice was occasioned by the error and dismissed the appeal.

The appellant appealed a decision of the Newfoundland Court of Appeal that overturned a stay of proceedings entered by the trial judge.

The trial judge had entered the stay because the police failed to bring the accused before a justice within the prescribed time, resulting in arbitrary detention.

The Supreme Court of Canada allowed the appeal and restored the stay, finding no reason to interfere with the trial judge's exercise of discretion.