Dr. Smith

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.

The appellants, husband and wife, were convicted of second degree murder in the death of their seven-year-old son, who died following months of severe physical abuse.

On appeal, the appellants sought to introduce fresh medical evidence regarding the cause of death and challenged the trial judge's jury instructions on aiding and abetting, out-of-court statements, and propensity reasoning.

The Court of Appeal dismissed the appeals, finding that the fresh evidence did not meet the required cogency threshold to affect the verdict, particularly given the tactical decision not to call such evidence at trial.

The Court also found no reversible errors in the jury instructions or evidentiary rulings, and upheld the 18-year parole ineligibility period for the stepmother.

The worker appealed a decision denying him full loss of earnings (LOE) benefits and entitlement for psychotraumatic disability following a 2002 workplace injury to his left shoulder and right hip.

The Appeals Resolution Officer found that the worker's physical restrictions did not render him totally unemployable, as he had successfully completed truck driving training and was capable of light delivery work.

Regarding the psychotraumatic disability claim, the Officer concluded that the workplace injury was only a minor contributing factor to the worker's depression, which was primarily driven by multiple non-compensable psychosocial stressors.

The appeal was dismissed.