The appellant was convicted of two counts of aggravated sexual assault in separate trials for failing to disclose his HIV-positive status to two sexual partners.
While his appeals were pending, the Supreme Court of Canada released its decision in R. v. Mabior, which clarified that a realistic possibility of HIV transmission is negated if the accused's viral load is low and condom protection is used.
Applying the Mabior standard, the Court of Appeal found the trial convictions unsustainable, as one relied solely on a concession without assessing transmission risk, and the other failed to resolve conflicting evidence on condom use.
Given that the appellant had fully served his sentences and the Crown consented, the Court allowed the appeals, set aside the convictions, and granted a stay of proceedings.
