COURT OF APPEAL FOR ONTARIO
Goudge, Cronk and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Suwalee Iamkhong
Appellant
Philip Campbell and Michael Dineen, for the appellant
David Lepofsky, for the respondent
Heard: March 24, 2009
On appeal from the conviction entered by Justice Todd Ducharme of the Superior Court of Justice dated January 16, 2007, and from the sentence imposed on August 16, 2007.
I. OVERVIEW
1The appellant was convicted of criminal negligence causing bodily harm and aggravated assault against her husband by having unprotected sexual intercourse with him while she knew she had tested positive for the Human Immunodeficiency Virus (HIV). The trial judge sentenced her to two years imprisonment in addition to one year of credit for strict pre-trial bail conditions.
2It was undisputed at trial that the appellant gave her husband HIV through repeated unprotected sex. Further, there was no dispute that, if she knew she was then HIV-positive, her conduct constituted the offences charged. The sole issue at trial was whether the appellant knew she had HIV when repeatedly having unprotected sex with her husband.
3The appellant claimed that she thought a Canadian immigration medical assessment found her HIV-negative, some time after she received an HIV-positive result in Hong Kong. She testified that she was skeptical of the Hong Kong test because she did not trust the laboratory at which she had been tested. She claimed to trust the negative result of what she believed was an HIV test conducted in Canada as part of the immigration process.
4The trial judge disbelieved the appellant and found that she was aware of her HIV-positive status during her marriage with the complainant. He found that she would have taken further steps to confirm that she was HIV-negative had she actually believed that she had received conflicting results on two tests.
5The appellant appeals both her conviction and sentence.
II. FACTS
6Most of the facts at trial were undisputed, except whether the appellant knew she was HIV-positive while regularly having unprotected sex with the complainant, and how fluent she was in the English language. The following, however, were either undisputed or uncontradicted.
7Around 1995, the appellant, originally from Thailand, worked in Hong Kong for a month as a prostitute. In the same year, she had an HIV test at a clinic in Hong Kong. She was told she tested positive. She testified that although she doubted the reliability of this result, she stopped having sex after receiving it, knowing the communicability of HIV.
8Two weeks after her HIV-positive test, the appellant entered Canada on a work permit to work at the Zanzibar Tavern in Toronto as a dancer. Some time after arriving, the appellant had a Canadian immigration medical assessment for her work permit renewal. This examination included the taking of blood samples. The appellant testified that she believed she was being tested for HIV as part of this examination. There is no evidence that the assessment included an HIV test, that anyone told her it included an HIV test, or that she asked anyone whether it included an HIV test. She testified that her boss, “Wally”, told her that “everything was okay” as a result of that assessment.
9The complainant was a regular customer at the Zanzibar and met the appellant there in 1996. They began to date, and after one and a half to two months started a sexual relationship. During this period they had intercourse two to three times per week. They generally used condoms, purchased by the complainant. In the summer of 1997, they married and moved in together. After their wedding, they stopped using condoms altogether. The couple spoke occasionally about sexually transmitted diseases, and the appellant told the complainant that she was tested whenever she renewed her work permit and that she did not have HIV or any other sexually transmitted disease.
10The appellant and complainant separated twice, first in 1999 for about a year, and again in 2002, for about nine months. There were conflicts in the marriage; however, both testified that they genuinely loved each other and that their relationship was close. The appellant continued to work at the Zanzibar on renewed work permits until she became a permanent resident of Canada on April 30, 2001.
11In February 2004, the appellant was admitted to hospital in Toronto. She was diagnosed with cryptococcal meningitis, an AIDS-defining illness. Only when testing in March 2004 showed she had AIDS did she tell the complainant that she had HIV or AIDS. The complainant subsequently was tested for HIV and tested positive. The defence conceded that he received HIV from the appellant.
III. ISSUES
12The appellant raises four grounds of appeal against her conviction, which are essentially that the trial judge erred in the following ways.
13First, the appellant submits that the trial judge erred in rejecting the testimony of the appellant insofar as he failed to consider the appellant’s background and lack of sophistication in evaluating the credibility of her evidence.
14Second, the appellant submits that the trial judge failed to consider the exculpatory effect of the fact that she had conscientiously refrained from sexual activity after testing HIV-positive in Hong Kong, in order to avoid transmitting the disease, and resumed sexual activity only after the Canadian medical examination.
15Third, the appellant submits that the trial judge erred in finding that the appellant’s right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms was not violated. She says the charges should have been stayed.
16Fourth, the appellant submits that the trial judge totally misapprehended her evidence in two respects: (i) her belief in connection with the medical tests in Hong Kong and Canada; and (ii) what she told her husband about those tests.
17Finally, the appellant also seeks leave to appeal her sentence, asking that it be reduced by one day so as to retain her entitlement to appeal a potential deportation order.
18We did not call on the Crown to respond to the appellant’s submissions regarding: (i) the trial judge’s failure to consider the appellant’s background and lack of sophistication; (ii) his failure to consider her conduct after she tested HIV-positive in Hong Kong; and (iii) the s. 11(b) Charter issue. In the end, I conclude that the appellant’s conviction appeal must be dismissed.
19I would, however, grant leave to appeal sentence and for the reasons that follow, allow the sentence appeal. I would set aside the sentence of two years imprisonment and impose a sentence of two years less one day.
IV. ANALYSIS
20I will proceed by first briefly addressing the issues that were not the subject of any response from the Crown, and thereafter deal with the remaining grounds of appeal, including the appellant’s assertion that the trial judge engaged in “circular reasoning”, followed by the sentence appeal.
(i) The appellant’s background and lack of sophistication
21The appellant was thirty-seven years old at the time of trial. She was born in a small village in Thailand, left school at age ten or eleven, and contends that she has limited literacy in her own language and none in English. The appellant argues that the trial judge misunderstood the defence position regarding her background and lack of sophistication.
22The appellant submits that the trial judge erroneously took the view that the defence at trial conceded that the appellant’s background and lack of sophistication were irrelevant to whether or not her evidence was credible. Rather, she says her background was very relevant, particularly in determining whether she was telling the truth about her reaction to the Canadian test and her belief that when her boss told her that her tests came back “okay”, that meant that she was HIV-negative.
23I do not read the trial judge’s reasons in this way. In my view, he decided that in light of all the evidence, the appellant’s background was not particularly relevant to the issue of her credibility. His view was confirmed by the defence argument at trial, which did not explicitly raise the issue of the appellant’s background. The appellant’s counsel candidly noted that he could not point to any passage in defence counsel’s trial submissions focusing on her background as a factor to be considered in evaluating her credibility, but contented himself with saying that the defence had called this evidence.
24I would reject this argument. In my view, the trial judge made no error and simply attached the weight to the evidence about the appellant’s background that he thought it deserved.
(ii) The appellant’s conduct after testing HIV-positive
25The appellant’s argument here is that the trial judge did not consider certain circumstantial factors that support her credibility. I would dismiss this ground of appeal.
26The appellant offers as a stark example of such circumstantial factors, her uncontradicted testimony that she stopped having sex after the positive HIV test in Hong Kong. Further, she testified that she only resumed sex once she believed that she had tested negative in Canada. The appellant submits that the trial judge never addressed whether this responsible conduct enhanced her credibility on the issue that she believed she was HIV-negative after the Canadian medical tests.
27The appellant argues that if this and other circumstantial evidence had been properly confronted and considered by the trial judge, he would have had abundant ground for reasonable doubt as to her guilt. I disagree with the appellant’s characterization of the trial judge’s treatment of this evidence.
28A trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues at trial: R. v. R.E.M. (2008), 2008 SCC 51, 235 C.C.C. (3d) 290, at para. 64. When credibility is at issue, “deference is in order and intervention will be rare”: R.E.M. at para. 32, referring to R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26.
29The trial judge’s reasons make it abundantly clear that he was aware that the appellant’s position was that she did not believe she was HIV-positive at the relevant time. Indeed, his entire reasons focus on whether the appellant thought she was HIV-negative as a result of the Canadian immigration medical assessment. In support of his rejection of the appellant’s testimony on this point, he listed five different considerations, which are more than sufficient to explain to the parties why he disbelieved the appellant. There is no basis to conclude that in making this credibility assessment he failed to consider any relevant evidence.
30In my view, the trial judge adequately addressed the live issue at trial. His conclusions are owed deference and I can find no basis to intervene.
(iii) The appellant’s right to trial within a reasonable time
31The appellant argues that her right to a trial within a reasonable time under s. 11(b) of the Charter was breached by delay. The total period of delay until the end of the appellant’s trial, as determined by the trial judge, was seventeen months and one week of institutional delay, four and a half months of delay attributable to the defence, and seven and a half months of neutral delay.
32The appellant submits that the trial judge erred in assessing a number of the periods of time making up the overall delay. In particular, she says the trial judge erred in finding that prejudice had not been established, and in his ultimate conclusion that the delay was not unreasonable. At trial, the Crown conceded that the length of the delay warrants inquiry.
33In R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 799, Sopinka J. found that with regard to institutional delay:
[I]t is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in [R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199].
34The approach required to address this issue is not simply a mathematical exercise, however. Rather, a judicial determination that balances “the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay” is required: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 787; see also R. v. Batte (2000), 45 C.C.C. (3d) 498, at para. 55. The trial judge considered all the appropriate factors, including prejudice to the appellant.
35The trial judge accepted that the length of the appellant’s exposure to criminal proceedings resulting from the delay gave rise to some prejudice. He found that her fair trial interest was affected by this. However, after examining her security interest and any other prejudice to her, he concluded that the appellant failed to establish that these factors caused any delay to be unreasonable. The trial judge considered all of these aspects together in his overall assessment of whether the delay was unreasonable in all the circumstances and found it was not.
36In my view, even if one were to change the allotments of responsibility for delay as the appellant suggests, the prejudice is not sufficient to warrant a revisiting of the trial judge’s finding and the overall delay does not become unreasonable. This is so even if the trial judge was mistaken in taking a minimal view of the prejudice due to the appellant’s house arrest on the basis that this factor might be taken into account in sentencing.
37I would dismiss this ground of appeal.
(iv) Misapprehension of the appellant’s evidence
38The appellant’s argument here is that the trial judge misapprehended the appellant’s evidence in rejecting her assertion that she believed she was HIV-negative after the Canadian test. The defence at trial conceded that this was the only issue. That is, if the trial judge disbelieved the appellant and found that her evidence did not raise a reasonable doubt on this issue, then she had to be found guilty of both charges.
39The specific reasons given by the trial judge as to why he disbelieved the appellant are as follows:
After careful consideration of all of the evidence, I reject Ms. Iamkhong’s testimony that she believed that she was HIV-negative. Nor does that evidence leave me with a reasonable doubt about whether or not she believed she was HIV-negative. I have come to this conclusion based on the following considerations:
The story simply does not correspond with common sense. Given that Ms. Iamkhong understood the gravity of the first positive result for HIV, one would expect her to seek out a second test as soon as she arrived in Canada. This seems even clearer when one considers that Ms. Iamkhong seems to have had doubts about the reliability of the Hong Kong clinic and its testing. Certainly Ms. Iamkhong should have sought a second HIV test once she decided to resume sexual activity. Not only did she not attempt to have any such test while in Canada, it appears from both her testimony and the contents of the medical records filed as exhibits that Ms. Iamkhong never told any medical personnel about a previous positive test until she succumbed to Cryptococcus.
I also reject Ms. Iamkhong’s assertion that she genuinely thought the medical test required by Immigration Canada would necessarily determine her HIV status. There is no evidence that HIV testing was even mentioned by anyone – certainly [the appellant] made no mention of this. There is no doubt that she understood she had previously tested positive for HIV and that she understood the serious consequences of such a diagnosis. One would expect that if Ms. Iamkhong was truly concerned about her HIV status, she would have sought to clarify this, even though she attended the medical examination for Immigration Canada without an interpreter.
Even if Ms. Iamkhong thought the second test indicated that she was HIV-negative, given that she understood the gravity of the situation, one would expect that she would make some greater effort to clarify the conflicting results rather than merely relying on the woefully incomplete second-hand account provided by Wally, her employer. Indeed, having received inconsistent results, one positive and one negative, I would have expected her to seek further clarification rather than merely relying on the most recent test.
That Ms. Iamkhong never made any effort to clarify her HIV status is supported by the medical notes relating to her contacts with other doctors. While I am aware these records are not recorded statements from Ms. Iamkhong, I note there is no mention on any of them that she was HIV-positive. This is particularly striking in that she did not even mention the HIV-positive test result when she went to see the doctor because of a concern that she had contracted a sexually transmitted disease. In such a circumstance, one would expect that Ms. Iamkhong would at least mention she had previously had a positive HIV result but was later cleared by the Immigration Canada medical examination. I do not accept, as Mr. Berg suggests, that this failure to mention the positive test is because Ms. Iamkhong believed she was not really HIV-positive. Rather, having considered all of the evidence, I find this is because Ms. Iamkhong consciously withheld this information from the medical professionals she dealt with.
I am also troubled by the fact that Ms. Iamkhong never told [her husband] about the positive test in Hong Kong and her belief that she was subsequently cleared by the second test. Mr. Berg did concede that Ms. Iamkhong did, on several occasions, discuss issues of condom use, sexually transmitted diseases and HIV status with [her husband]. Even if Ms. Iamkhong did not, for whatever reason, want to mention the initial positive test in Hong Kong, one would expect that she would have told [her husband] that the Immigration Canada medical examination was proof that she was HIV-negative. But Ms. Iamkhong made no mention of the latter test, the very one that she says is the basis for her belief that she posed no risk to [her husband].
40The appellant argues that the trial judge’s five reasons for rejecting her testimony demonstrate two significant errors. First, his reasons are all grounded on a basic misapprehension of the appellant’s evidence. She contends that the trial judge’s reasons are founded on his expectation about how a person would behave if she had received conflicting results in consecutive HIV tests and was therefore uncertain about her HIV status. Because the appellant’s actions were inconsistent with these expectations, he disbelieved her when she claimed to believe she was HIV-negative.
41The appellant argues that she did not testify that she was uncertain, or in a state of doubt, about her HIV status after the Canadian test. Rather, she testified that she did not trust the Hong Kong result and she believed the Canadian test had proven her to be HIV-negative.
42The appellant submits that the five reasons set out by the trial judge, in effect, show that her actions were inconsistent with someone left in doubt about her HIV status by conflicting tests. However, the appellant contends, this was not a state of mind she claimed to have held at the relevant time. The trial judge, therefore, wrongly started from the assumption that the appellant would have been left in doubt by what she believed was the second HIV test, and assessed her conduct accordingly. Such an approach, she says, fails to take account of the appellant’s situation, and presumes a rejection of her testimony that she believed herself to be HIV-negative.
43The second error is said to rest on a major misapprehension of the evidence by the trial judge. Specifically, in the trial judge’s fifth reason, he relies on the fact that the appellant never told her husband about the positive test in Hong Kong, and on the appellant’s belief that she was subsequently cleared by the second test. The husband, in fact, testified that the appellant did tell him she had tested negative on the immigration medical examination in Canada.
(a) The appellant’s belief
44As to the first ground, the trial judge was clearly aware that the appellant’s position was that she did not believe she was HIV-positive. Indeed, he prefaces his list of five specific reasons for rejecting her testimony with a clear reference to this belief:
After careful consideration of all of the evidence, I reject Ms. Iamkhong’s testimony that she believed that she was HIV-negative. Nor does that evidence leave me with a reasonable doubt about whether or not she believed she was HIV-negative.
45Further on, in reason four, he states: “I do not accept, as Mr. Berg suggests, that this failure to mention the positive test is because Ms. Iamkhong believed she was not really HIV-positive.” His reasons must, therefore, be read in this context.
46Once again, the trial judge’s reasons focus almost entirely on whether the appellant believed that she was HIV-negative. The reasons address her state of mind after both HIV tests, including the one she assumed Canadian immigration officials performed, and the trial judge acknowledged her testimony that she thought she was HIV-negative.
47The trial judge was not foreclosed from considering whether the appellant’s alleged belief was believable simply because she said that she had no doubt from the two tests. I cannot find any basis upon which to conclude that the trial judge misapprehended her evidence about her belief.
(b) The appellant’s revelations to her husband
48The question to be decided here is whether the appellant has demonstrated that the trial judge’s misapprehension of the evidence that she told her husband about the supposed negative Canada immigration HIV test is a material part of the evidence at trial, and whether this error played an essential part in the trial judge’s reasoning process leading to a conviction, such that it constituted a miscarriage of justice pursuant to s. 686(1)(a)(iii) of the Criminal Code: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.). In Morrissey, Doherty J.A. explained, at p. 541:
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict.… If an appellant can demonstrate that the conviction depends on a misappre-hension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
49These statements were cited with approval by the Supreme Court of Canada in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732. Binnie J. elaborated on the Morrissey test as follows, at para. 2:
Morrissey, it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in a conviction".
50Each counsel offers a different approach to the application of the test in Morrissey to this case. The Crown says that the correct approach is to require the appellant to show that the result would have been different had the mistake not been made. The appellant, on the other hand, asserts that all she need show is that the result could have been different.
51In my view, the approach required in this case is the one discussed in Morrissey at p. 541:
… any error, including one involving a misapprehension of the evidence by the trial judge must be assessed by reference to its impact on the fairness of the trial. If the error renders the trial unfair, then s. 686(1)(a)(iii) requires that the conviction be quashed.
52This approach does not focus ultimately on whether the result would or could have been different had the evidence not been misapprehended. While that may be a relevant consideration, the focus is on the impact of the misapprehension on the fairness of the trial.
53In his fifth reason for disbelieving the appellant, the trial judge found that had the appellant truly believed she was HIV-negative, she would have told her husband about the Hong Kong test and the Canadian test. While he misapprehended the evidence on the latter, he was correct about the former. An evidentiary basis therefore exists for the fifth reason.
54More importantly, the other reasons all stand unimpaired. These include, especially, the first reason, namely, that the appellant’s story simply does not correspond to common sense. All four reasons are well anchored in evidence that the trial judge could quite properly accept. In these circumstances, where only the trial judge’s fifth reason is founded on a misapprehension of evidence, and then only in part, I cannot conclude that the appellant received an unfair trial. The misapprehension does not give sufficient cause to doubt the reliability of the verdict to render it a miscarriage of justice.
55As I have said, the trial judge’s reasons focus almost entirely on whether the appellant believed that she was HIV-negative. He provided a series of reasons for disbelieving her evidence on the core issue, namely, her state of mind. It simply cannot be concluded that the trial judge’s misapprehension of evidence played an essential part in the reasoning process resulting in a conviction. In my view, it was not an essential part of the trial judge’s reasoning process.
(v) The sentence appeal
56The appellant received a sentence of two years in the penitentiary. As a result, s. 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, will deny her the right to appeal if she is ordered deported from Canada. This factor was not considered by the trial judge, nor by counsel at the sentencing hearing, who focused on where the appellant would receive better medical care during her incarceration.
57The appellant does not claim that the current sentence is outside the appropriate range. Further, she concedes that defence counsel at the sentencing hearing, while seeking a conditional sentence, asked that if she were to be imprisoned that it be in federal prison due to her medical needs.
58As this court held in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, at para. 85: “There is seldom only one fit sentence. Fitness usually describes a range of appropriate sentencing responses.”
59This seems to me to be such a case. As was the case in Hamilton, the appellant’s conviction makes her “inadmissible” under the Immigration and Refugee Protection Act, and could trigger steps resulting in her deportation. If the appellant receives a sentence of more than two years and is ordered deported, one of the avenues by which she could challenge that deportation would be lost by virtue of the length of the sentence imposed: Immigration and Refugee Protection Act, s. 64(2).
60The risk of deportation is a factor that can be considered in deciding the “appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender”: Hamilton, at para. 156. I believe, as was the case in Hamilton, that the trial judge, in deciding that a sentence at or near two years was the appropriate sentence, would have been entitled to look at the deportation consequences for the appellant of imposing a sentence of two years less a day as opposed to a sentence of two years. And, as in Hamilton, had he done so, this would have been an example of the human face of the sentencing process: Hamilton, at para. 158.
61A sentence of two years less a day after credit for strict bail conditions would be equally fit, but would entitle the appellant to seek to remain in Canada, subject to appropriate conditions. Insofar as the impact of the sentence on the appellant is concerned, this is a serious consideration.
62It appears that the future prospects of the appellant can be assisted or improved by imposing a sentence of two years less a day, rather than two years. In such a situation, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence: Hamilton, at para. 158. And, as Doherty J.A. also noted in Hamilton at para. 158, “[w]hile the assistance afforded to someone like [the appellant] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence”.
63For these reasons, I would grant leave to appeal sentence and I would allow the sentence appeal. I would set aside the sentence of two years imprisonment imposed at trial and substitute a sentence of two years less one day.
V. DISPOSITION
64For all the reasons set out above, I would dismiss the appeal against conviction. However, I would grant the appellant leave to appeal the sentence imposed at trial; I would allow that appeal and set aside the two year sentence and substitute a sentence of two years less one day.
RELEASED:
“JUN 12 2009”
“STG” “H.S. LaForme J.A.”
“I agree S.T. Goudge J.A.”
“I agree E.A. Cronk J.A.”
