WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 . 486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court of Appeal for Ontario

DATE: 20220829 DOCKET: C69420 Doherty, Favreau and Copeland JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jennifer Murphy Appellant

Counsel: Colleen McKeown, for the appellant Grace Choi, for the respondent

Heard: August 11, 2022

On appeal from the conviction entered on August 16, 2013 by Justice Gregory M. Mulligan of the Superior Court of Justice, with reasons reported at .

Copeland J.A.:

Overview

[1] The appellant was convicted of one count of aggravated sexual assault in 2013. The conviction arose from a single incident of vaginal intercourse with the complainant in 2011. The basis for the conviction was that the complainant’s consent to the sexual act was vitiated because the appellant did not disclose her human immunodeficiency virus (“HIV”)-positive status and a condom was not used. The trial judge accepted the complainant’s evidence that he would not have consented to the sexual intercourse if he had known that the appellant was HIV-positive.

[2] At trial, there was an agreed statement of facts in relation to the appellant’s treatment for HIV and her viral load over time. The agreed facts included that the appellant had been on antiretroviral treatment (“ART”) since 2001. Her ART regime was modified in 2005 and at that time her viral load was brought down to undetectable. [1] At dates before and after the sexual contact with the complainant, including very close in time to the sexual contact, testing showed that the appellant’s viral load was undetectable. There was also expert evidence in relation to the appellant’s viral load. The trial judge found that at the time of the sexual intercourse with the complainant the appellant’s viral load was undetectable and she was on ART.

[3] Based on the expert evidence before him, which was based on the state of the science at that time and the decision in R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, the trial judge found that consent was vitiated by fraud because the appellant did not disclose her HIV-positive status and a condom was not used. In the circumstances, he found that there was a realistic possibility of HIV transmission from vaginal intercourse.

[4] The science in relation to HIV transmission has evolved since the appellant’s conviction and since the decision in Mabior. Based on these developments in the science, in May 2021, the appellant sought and obtained an extension of time to appeal her conviction.

[5] The appellant asks this court to admit fresh expert evidence showing that the risk of HIV transmission is effectively zero when a person is on ART and their viral load is undetectable, and thus that there was no realistic possibility of transmission of HIV from the appellant engaging in sexual intercourse with the complainant. The appellant submits that if the fresh evidence is admitted, the findings of the trial judge that she had an undetectable viral load and was on ART at the time of the sexual contact compel the conclusion that there was no realistic possibility of transmission of HIV to the complainant at the time they had sexual intercourse. If that proposition is accepted, consent was not vitiated by non-disclosure of her HIV-positive status, and she should be acquitted.

[6] The respondent consents to the admission of the fresh evidence as it relates to the appellant’s circumstances, and joins in the request that the court allow the appeal, set aside the conviction, and enter an acquittal.

[7] However, there is one issue on which the parties disagree. The appellant asks the court to make a broader statement about circumstances in which the “realistic possibility of transmission” threshold for disclosure of HIV status would be negated, which would go beyond the particular scientific and factual circumstances in the appellant’s case and beyond what is necessary for the purpose of deciding this appeal.

[8] The respondent submits the court should confine itself to a finding that the expert evidence in relation to the appellant’s circumstances justifies a finding that there was no reasonable possibility of transmission at the time of the sexual contact in this case, and thus, the appellant had no obligation to disclose her HIV status. The respondent submits that the court should not address situations beyond the factual circumstances in this case.

[9] At the end of oral argument, the court admitted the fresh evidence, allowed the appeal, set aside the conviction, and entered an acquittal. We advised that we would provide reasons in due course, including addressing the disputed issue of whether it is appropriate in this appeal to make a more general statement about circumstances that negate a reasonable possibility of HIV transmission. These are the reasons.

[10] I first address the admissibility of the fresh evidence and the disposition of the appeal. I then address whether the court should set a new legal threshold implementing the “realistic possibility of transmission” test that goes beyond the factual circumstance in this appeal.

Admission of the fresh evidence and its application to the facts of this case

[11] The central holdings in Mabior are relevant to the admission of the fresh evidence in this appeal. In Mabior, the Supreme Court retained the analysis of fraud vitiating consent from R. v. Cuerrier, [1998] 2 S.C.R. 371, that there must be a deception and a risk of deprivation; however, the court clarified what is required for there to be a sufficient risk of deprivation to vitiate consent in the context of HIV non-disclosure. Three aspects of the decision in Mabior are relevant to this appeal.

[12] First, the court held that a significant risk of bodily harm (i.e., the risk of deprivation) is established where there exists a “realistic possibility of transmission of HIV” from the sexual contact at issue: Mabior at paras. 4, 84, 91, 93; see also R. v. N.G., 2020 ONCA 494, 152 O.R. (3d) 24, at para. 64. That is, where a person fails to disclose their HIV-positive status before engaging in sexual relations, in circumstances where there exists a realistic possibility of HIV transmission, there will be a deception and a risk of deprivation that establishes fraud vitiating consent.

[13] Second, in an effort to provide further clarity on the implementation of the “realistic possibility of transmission” threshold, the court held that the presence of two factors will negate a realistic possibility of HIV transmission: (i) the accused’s viral load at the time of the sexual relations was “low” [2]; and (ii) a condom was used: Mabior at paras. 94-95; N.G. at paras. 65-66.

[14] Third, Mabior made clear that its holding – that the combination of low viral load plus condom use negates a realistic possibility of HIV transmission – was based on the factual record before the court, and was not written in stone. The court recognized that the science of HIV transmission and treatment may develop over time. In light of that recognition, the court specifically invited lower courts to adapt the means by which a realistic possibility of HIV transmission can be negated, if further advances in the science in relation to transmission and treatment evolve to change the risk of transmission: Mabior at paras. 4, 94-95, 101, 103-104, 109; N.G. at paras. 73-74, 76, 78-81.

[15] I note, as well, the decision of this court in R. v. Felix, 2013 ONCA 415, 298 C.C.C. (3d) 121, which held that if a condom was not used, viral load was irrelevant to assessing realistic possibility of transmission. Felix was decided in the same time period as in Mabior, and was based on the state of the science at that time.

[16] As I have noted, in this case, the finding by the trial judge that there was a reasonable possibility of transmission at the time of the intercourse was based on the science at the time and in the record at trial. In substance, the scientific evidence relied on by the trial judge was the same as in Mabior, as the appellant’s trial took place shortly after Mabior was decided.

[17] The fresh evidence establishes that developments in the science in relation to HIV transmission since Mabior undermine the trial judge’s conclusion that the act of vaginal intercourse between the appellant and the complainant that constituted the offence posed a realistic possibility of transmission of HIV.

[18] The fresh evidence consists of an affidavit (and cross-examination) of Dr. Philippe El-Helou. Dr. El-Helou is a medical doctor and a specialist in infectious diseases and human immunodeficiency viruses. He is an Associate Professor in the Division of Infectious Diseases at the Faculty of Health Sciences at McMaster University. In addition, he has a clinical practice which includes HIV at the McMaster University Medical Centre.

[19] As it relates to the appellant’s circumstances, Dr. El-Helou’s evidence is based on a scenario of a single act of vaginal intercourse without the use of a condom, when the appellant was on ART, and her viral load was undetectable and had been for some time. Based on current scientific and medical knowledge about HIV transmission, Dr. El-Helou opined that there was “zero risk [the appellant], who was being treated by ART and had an undetectable viral load at the time, would transmit HIV through a single act of condomless vaginal intercourse.”

[20] The respondent’s concession that Dr. El-Helou’s evidence meets the requirements for admission of fresh evidence is circumscribed to the portions that address the particular circumstances of the appellant’s case (a single act of vaginal intercourse, with an undetectable viral load, while on ART for a stable period of time) and his evidence on post-trial developments in science that inform his opinion on the appellant. There are aspects of Dr. El-Helou’s opinion which go beyond the factual circumstances of the appellant’s case. For example, he addresses viral loads up to less than 200 copies of HIV per mL of blood. [3] Also, although this aspect of his evidence was not fully explored, his opinion appears to address circumstances involving more than a single act of sexual intercourse (I return to the issue of repeated exposure below).

[21] As the admission of the fresh evidence and disposition of the appeal is based on consent of the respondent, at this stage I focus on the aspects of the fresh evidence that are necessary to decide the appeal. This approach is consistent with the fact that the respondent conveyed limits on its concession about the issues on which the evidence met the fresh evidence cogency requirement.

[22] I agree with the parties that the fresh evidence meets the Palmer criteria for admissibility of fresh evidence: R. v. Palmer, [1980] 1 S.C.R. 759 at p. 775; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401 at paras. 202-206, 216-217.

[23] First, the evidence is admissible under the operative rules of evidence. It is relevant to the central issue at trial, whether consent was vitiated by fraud. In addition, there is no dispute that the fresh evidence meets the threshold for admissibility of expert opinion evidence.

[24] Second, the parties agree, as do I, that the evidence is sufficiently cogent to be admitted. Again, I focus the cogency analysis on the fresh evidence as it relates to the appellant’s particular circumstances. There is no dispute that Dr. El-Helou’s evidence is credible. The respondent does not contest his expertise in the field of infectious disease and HIV. The fresh evidence is strongly probative of the central issue at trial, whether consent was vitiated by fraud. In particular, it is relevant to whether there was a realistic possibility that HIV could be transmitted to the complainant from the single act of intercourse with the appellant when the appellant was on ART and her viral load was undetectable. The fresh evidence could reasonably be expected to have affected the result – indeed, it is decisive. As noted above, the substance of Dr. El-Helou’s opinion is that in the particular circumstances of the appellant and the sexual contact, there was “zero risk” of transmission of HIV to the complainant. This evidence undermines the trial judge’s finding that there was a realistic possibility of HIV transmission from the sexual intercourse between the appellant and the complainant. With that finding undermined, the finding that consent was vitiated by fraud is also undermined.

[25] Third, the appellant has a viable explanation for the failure to adduce the fresh evidence at trial. The science in relation to HIV transmission has developed since the time of her trial (and since the decisions in Mabior and Felix). Given these developments, the fresh evidence did not exist at the time of her trial.

[26] Without going beyond the facts of the appellant’s circumstances, I underline what is perhaps obvious. Because the science in relation to HIV transmission has developed since Mabior, the fresh evidence in this case supports that in the appellant’s circumstances – engaging in a single act of vaginal sexual intercourse while on ART, and having an undetectable viral load, which was stable over time – there is no realistic possibility of transmission of HIV, even if a condom was not used during intercourse. This conclusion is based on the development of the science, which is consistent with the law as stated in Mabior that the implementation of the “realistic possibility of transmission” test, which is the legal standard, is capable of evolving as scientific knowledge about HIV transmission evolves.

Should the court address the application of the realistic possibility of transmission standard to facts other than those directly in issue in this case?

[27] The appellant asks the court to go beyond the circumstances of her case, and to hold as a matter of development of the common law of the implementation of the “realistic possibility of transmission” test that a realistic possibility of transmission is negated when a person has a “suppressed” viral load and is on ART.

[28] The extension of circumstances that would negate a realistic possibility of transmission that the appellant seeks from this court differs from the facts of her case in three ways. First, it is not limited to circumstances of a single sexual act. Second, it is not qualified by the HIV-positive person having some period of stability at a suppressed viral load. Third, it uses a threshold of a “suppressed” viral load, rather than an undetectable viral load. The reference to a “suppressed” viral load in the appellant’s submission refers to under 200 copies of HIV per mL of blood (in recognition that improvements in testing have lowered the undetectable limit from less than 200 copies per mL to less than 40 copies per mL of blood).

[29] The appellant submits that the court should take the step of identifying a new set of circumstances, beyond her case, which negate a realistic possibility of transmission for three reasons. First, deciding the appellant’s appeal requires the court to go beyond the Mabior guidance that the combination of a low viral load plus condom use negates a realistic possibility of HIV transmission. Second, identifying a new set of circumstances which negate a realistic possibility of transmission as a matter of law would promote certainty by indicating concrete situations where a realistic possibility of transmission is negated. The appellant submits that such an approach is consistent with Mabior. Third, in light of prosecutorial guidelines federally and in a number of provinces, [4] it is less likely that another case will come before this court allowing the court to set a new threshold for what negates a realistic possibility of transmission. The appellant notes in this respect that the federal and provincial prosecutorial guidelines are based on guidance from the Public Health Agency of Canada, which states that the risk of sexual HIV transmission is negligible where the HIV-positive partner has a suppressed viral load of less than 200 copies of HIV per mL of blood on consecutive measurements 4 to 6 months apart. [5]

[30] The respondent submits that the court should not go beyond what is necessary to decide the appellant’s appeal – which involves the appellant having an undetectable viral load that is stable over a period of time, being on ART, and engaging in a single act of vaginal intercourse with the complainant without a condom. The respondent bases this submission both on the notion that a court should not decide more than it has to, particularly in the context of a fresh evidence application, and also on areas where the respondent submits the evidence is less cogent as it moves beyond the appellant’s specific circumstances. In particular, the respondent submits that the fresh evidence is less cogent in relation to risk of HIV transmission beyond the single act of sexual intercourse in this case, and should not be extended to circumstances of repeated sexual contact on the record before the court.

[31] In my view, it would not be appropriate in this case for the court to make a broader holding about circumstances which would negate a realistic possibility of HIV transmission. My reasons for declining to do so are based on: (i) institutional concerns arising from the fact that this issue comes before the court in this appeal by way of a fresh evidence application; and (ii) concerns related to the factual record of the fresh evidence in this case. As I explain in more detail below, my concerns about the fresh evidence record in this case relate to whether it is sufficient to draw conclusions about the risk of transmission from repeated sexual contacts, and whether it supports a broader statement about risk of transmission without the qualification of a period of stability at a suppressed viral load.

(i) Institutional concerns

[32] The fact that the issue of the threshold for realistic possibility of HIV transmission comes before the court by way of a fresh evidence application counsels in favour of deciding only what needs to be decided to dispose of the appeal. My concerns relate both to the role of this court sitting on appeal, and the superior institutional tools of a trial court to develop a record to consider the application of the reasonable possibility of transmission test to other circumstances.

[33] Although the discretion to admit fresh evidence in s. 683(1)(d) of the Criminal Code, R.S.C. 1985, c. C-46, is worded broadly, the Palmer test structures the discretion in recognition that finality is an important value in the trial process, and fresh evidence should not be admitted as a matter of course. Fresh evidence is admissible to the extent it may call into question the reliability of factual findings essential to the verdict rendered at trial. The cogency analysis in a fresh evidence application directs an appellate court to focus on the probative value of the evidence and its potential to be decisive of an issue at trial. In my view, relying on fresh evidence to go beyond what is necessary to decide this appeal is inconsistent with the circumscribed role of fresh evidence in our appellate system.

[34] Further, a trial court is better placed than this court sitting on appeal to develop and assess a factual record necessary to decide the application of the realistic possibility of transmission standard to circumstances different than those in the appellant’s case. This court sitting on appeal works with a paper record. The factual record on a fresh evidence application is already set by the time it comes before a panel. Although Dr. El-Helou was subject to cross-examination, this court received a transcript of the cross-examination, rather than seeing and hearing the cross-examination. In a trial court, the presiding judge hears and sees the witnesses. The dynamic environment of a trial court is better-suited to ensuring that a factual record is sufficient to decide the issues to be decided. For example, a trial judge would be able either to pose questions themself to an expert to clarify areas of uncertainty, or to let counsel know about any concerns the trial judge has in relation to aspects of the evidence while the expert is on the stand, so that counsel could attempt to clarify the evidence through further examination or cross-examination.

[35] In addition to a trial court being better suited to develop a record to consider the application of the realistic possibility of transmission standard to other circumstances, a decision by a trial court would be subject to broad appellate review by this court. The requirement that leave to appeal to the Supreme Court be obtained in order to appeal from this court, and the practical limits on the number of appeals heard by the Supreme Court, counsel in favour of not going beyond the facts of this case. This is particularly so given my concerns about aspects of the fresh evidence record in this case as it relates to circumstances beyond facts of the appellant’s case. I turn now to those concerns.

(ii) Concerns arising from the fresh evidence record

[36] I also agree with the submission of the respondent that there are aspects of the fresh evidence tendered in this appeal that militate against this court ruling on circumstances which would negate a realistic possibility of HIV transmission beyond the particular circumstances of the appellant and the offence she was convicted of. Two examples suffice to highlight my concerns.

[37] First, Dr. El-Helou’s opinion about the appellant’s case is based on a single occasion of vaginal intercourse. Although the studies he relied on to form his opinion involve multiple sexual contacts (in particular, the more recent PARTNER Study and the Opposites Attract Study [6]), and it may be open to infer from Dr. El-Helou’s evidence that for a person on ART with an undetectable viral load, the risk of transmission of HIV from multiple sexual contacts is negligible, [7] the issue of number of occasions of sexual contact and cumulative risk was not fully explored in the fresh evidence in this case. Thus, on the record before the court in this appeal, I conclude that it is not appropriate to go beyond the facts of the appellant’s case, which involve a single occasion of vaginal intercourse.

[38] Second, assuming for the sake of argument it were appropriate to go beyond the single occasion of intercourse of the appellant’s case, the broader statement about circumstances that would negate a realistic possibility of transmission sought by the appellant is in at least one important respect not consistent with the evidence of Dr. El-Helou. During oral submissions the court asked counsel for the appellant if the broader statement sought by the appellant included a requirement that the person’s viral load have been undetectable for 6 months or more (i.e., stable for a period of time). Counsel replied that this qualification was not part of the broader statement she sought. However, Dr. El-Helou repeatedly referred to a person’s undetectable viral load being stable for a period of 6 months or more (and on ART) as an aspect of his opinion in relation to risk of transmission. He testified that the advice he gives his own patients is that once the virus is undetectable in blood for more than 6 months (on ART), they pose no risk for HIV transmission to their sexual partners. Similarly, the Public Health Agency of Canada’s review of the most recent medical science on sexual HIV transmission describes the risk of sexual HIV transmission as “negligible” where the HIV-positive partner is on ART and has a suppressed viral load of less than 200 copies per mL of blood “on consecutive measurements 4 to 6 months apart”. [8] Thus, the fresh evidence record does not support a blanket statement that being on ART with an undetectable viral load negates the realistic possibility of transmission of HIV without including a qualification of some period of stability on ART at an undetectable viral load. In my view, it is not appropriate for the court to construct a different threshold for reasonable possibility of transmission than that contended for by the appellant.

[39] My conclusion that the court should not establish in this case a new common law scientific threshold for when a realistic possibility of HIV transmission is negated is based on a combination of the limits of the fresh evidence record before the court and the appropriateness of making a more general statement in the context of a fresh evidence application as opposed to a full record developed at trial.

[40] This decision should not be read as holding that the appellant’s circumstances – on ART with an undetectable viral load, for an extended period of time, and engaging in a single act of intercourse – are the only circumstances in which it would be open to a trial court to find that there was no realistic possibility of HIV transmission where a condom was not used. In particular, this is not a holding that the only circumstance in which consent will not be vitiated in the absence of disclosure or condom use is where a person’s viral load is undetectable. Rather, the court is deciding only what needs to be decided to dispose of this appeal. Mabior is clear that the implementation of the realistic possibility of transmission threshold can adapt to advances in scientific knowledge about HIV transmission and treatment and to risk factors other than those considered in Mabior. On a proper evidentiary record, it would be open to a trial court to find other circumstances in which there is no realistic possibility of transmission even in the absence of condom use (see also N.G. at paras. 78-81).

Disposition of the appeal

[41] The fresh evidence is admitted. The appeal is allowed. The conviction is set aside and an acquittal entered.

Notes

[1] In this decision, “undetectable” viral load refers to a viral load of less than 40 copies of HIV per mL of blood. However, as noted in Mabior and in the fresh evidence in this appeal, the threshold for an undetectable viral load varies based on testing capacity and is subject to change based on advances in testing. There is a further discussion of testing capacity and viral load thresholds at footnotes 2 and 3.

[2] The Mabior decision describes a viral load of less than 1,500 copies of HIV per mL of blood as “low” (at para. 100). This is consistent with the fresh evidence of Dr. El-Helou in this appeal, which was that low viral load is generally considered to be 1,000 to 1,500 copies per mL of blood. Mabior described an “undetectable” viral load as less than 50 copies of HIV per mL of blood, but also acknowledged that developments in testing technology can affect the lower end of what viral load can be detected in testing (at paras. 100 and 102). Again, this is consistent with the evidence of Dr. El-Helou who testified that the viral load that is considered undetectable has declined over time with improvements in testing (i.e., the testing can accurately read lower viral loads that in the past). His evidence was that over time, the viral load considered to be undetectable has declined from less than 400 copies of HIV per mL of blood, to less than 200 copies per mL of blood, to less than 50 or 40 copies per mL of blood. The current standard of undetectable viral load in Canada is less than 40 copies of HIV per mL of blood. Dr. El-Helou also testified that the specific number of copies that is considered an undetectable viral load still varies to some extent geographically, depending what testing technology is available in a given country.

[3] As I understand Dr. El-Helou’s evidence, a viral load of less than 200 copies of HIV per mL of blood would also be considered “suppressed” and akin to undetectable; however, because of advances in testing, a viral load of between 40 and less than 200 copies of HIV per mL of blood is no longer technically “undetectable”, because testing has advanced so that it can produce results of viral load in this range.

[4] Ontario, Ministry of the Attorney General, “D.33 Sexual Offences Against Adults: Sexually Transmitted Infections and HIV Exposure Cases” in Crown Prosecution Manual (Ontario: Ministry of the Attorney General, 2017); Directive (Office of the Director of Public Prosecutions) (2018) C Gaz I, 4322-4324 (Director of Public Prosecutions Act); British Columbia, Prosecution Service, “Sexual Transmission, or Realistic Possibility of Transmission, of HIV” in Crown Counsel Policy Manual (British Columbia: Prosecution Service, 2019).

[5] Jennifer LeMessurier et al., “Risk of sexual transmission of human immunodeficiency virus with antiretroviral therapy, suppressed viral load and condom use: a systematic review” (2018) 190:46 CMAJ E1350.

[6] Dr. El-Helou’s affidavit provided the following references to the PARTNER Study and Opposites Attract Study: Alison J. Rodger et al., “Sexual Activity Without Condoms and Risk of HIV Transmission in Serodifferent Couples When the HIV-Positive Partner Is Using Suppressive Antiretroviral Therapy” (2016) 316:2 JAMA 171; B. Bavington et al., “HIV treatment prevents HIV transmission in male serodiscordant couples in Australia, Thailand and Brazil” (Study presented at the 9th International AIDS Society Conference on HIV Science, Paris, 2017) [abstract available online at https://programme.ias2017.org/Abstract/Abstract/5469]. The results of the Opposites Attract Study have also been published in The Lancet: Benjamin R. Bavington et al., “Viral suppression and HIV transmission in serodiscordant male couples: an international, prospective, observational, cohort study” (2018) 5:8 The Lancet HIV E438. By contrast, the Consensus Statement (Françoise Barré-Sinoussi et al, “Expert consensus statement on the science of HIV in the context of criminal law” (2018) 21:7 J Intl Aids Society 1) considers “the possibility of HIV transmission between individuals who have engaged in a specific act at a specific time under specific circumstance, as that is usually the focus of criminal cases” (at p. 2). Dr. El-Helou confirmed in his evidence that the assessments of risk in the Consensus Statement refer to a single act of each sexual act addressed in the statement.

[7] I note that the Ontario Crown Prosecution Manual and the Public Prosecution Service of Canada Directive in relation to prosecutions for sexual assaults involving HIV non-disclosure are not expressly limited to circumstances involving a single act of sexual contact: Ontario, Ministry of the Attorney General at s. D.33; Directive (Office of the Director of Public Prosecutions).

[8] Jennifer LeMessurier et al., p. E1356

Released: August 29, 2022 “D.D.” “J. Copeland J.A.” “I agree Doherty J.A.” “I agree L. Favreau J.A.”