COURT FILE NO.: 7638/16 DATE: 2018-07-10
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN D. Peterson, Counsel for the Respondent Respondent
- and -
NICHOLAS GOODCHILD Applicant Michael Lacy, Counsel for the Applicant
HEARD: June 18 and 19, 2018
GAREAU J.
Reasons on Application to Reopen the Conviction
[1] On November 15, 2017, Nicholas Goodchild was convicted of three counts of aggravated sexual assault, contrary to s. 273(1) of the Criminal Code of Canada.
[2] I released a written decision on November 15, 2017 which set out the reasons for Mr. Goodchild’s conviction. This case involved Mr. Goodchild as a carrier of the human immunodeficiency virus (HIV) who did not disclose his HIV status to three female individuals with whom he engaged in sexual relations. The case before the court centered around the issue of the “significant risk of bodily harm” element of s. 273(1) of the Criminal Code of Canada and whether there was a realistic possibility of the transmission of the HIV virus by Mr Goodchild.
[3] The evidence at trial indicated that Mr. Goodchild did not have a low viral load count at the time he had sexual intercourse with the complainants, but did use a condom during the occurrences of sexual intercourse with all three complainants. The defence advanced the proposition that condom use alone was sufficient for the court to find that there was not a realistic likelihood of the transmission of the HIV virus and that there had been advances in science to reflect that fact since the Supreme Court of Canada decided R. v. Mabior, 2012 SCC 47 in 2012.
[4] In R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, the Supreme Court of Canada held that a person may be found guilty of aggravated sexual assault if he fails to disclose HIV positive status before intercourse and there is a realistic possibility that HIV will be transmitted. In Mabior the court held that if a HIV positive person has a low viral count as a result of treatment and there is condom protection, the threshold of a realistic possibility of transmission is not met. In Mabior the court held that both a low viral count and condom use are necessary to negate the realistic possibility of transmission of the HIV virus.
[5] At the trial of this matter, Dr. Wendy Lee Wobeser testified for the defence. Dr. Wobeser was qualified as an expert to provide opinion evidence with respect to the biology and treatment of HIV, the risk of transmission of HIV, and in the general area of infectious diseases. The evidence of Dr. Wobeser is discussed in paragraphs 53 to 78 of my reasons for judgment.
[6] As set out in my reasons at paragraph 63, Dr. Wobeser’s conclusory comments related to condom use and the risk of transmission of HIV were at the bottom of page 4 of her report which reads, in part:
When used correctly and no breakage occurs condoms are 100% effective at stopping the transmission of HIV.
[7] As indicated at paragraph 68 of my reasons, in cross-examination, Dr. Wobeser acknowledged that there is a difference between clinical studies and real world studies. Dr. Wobeser indicated in her evidence that in the real world context of condom use, it is 80 to 85% effective in reducing the risk of transmission and likely in her view, closer to the 80% figure.
[8] Dr. Wobeser in her evidence testified that it was in the area of the effectiveness of anti-retroviral medication that the most significant progress in science has been made. The proper use of anti-retroviral medication leads to an undetectable HIV virus where there is no realistic possibility of transmission of the HIV virus.
[9] Mr. Goodchild brought an application dated May 9, 2018 in which he seeks an order setting aside the conviction and reopening the trial to receive further evidence, primarily the evidence of Dr. John Richard Middleton Smith.
[10] That application was heard by the court on June 18, 2018. On June 19, 2018, the court made an endorsement on the application record which reads as follows:
Although the court is not functus and retains jurisdiction to open a conviction and receive further evidence prior to sentence, it is acknowledged by counsel that the threshold to do so is a high one and this discretion in the court should only be exercised in exceptional circumstances and in the clearest of cases.
In my view, the evidence proposed to be adduced by Dr. John Smith does not meet the cogency test as set out in R. v. Palmer, 1979 SCC 8 , [1980] 1 S.C.R. 759 as amplified in R. v. Reeve, 2008 ONCA 340, [2008] O.J. No. 1680.
The high threshold on the applicant has not been met. Accordingly, the application is dismissed.
[11] In a criminal proceeding without a jury the court is not functus until sentencing occurs. (See: R. v. Lessard (1976), 1976 ONCA 1417, 30 C.C.C. (2d) 70 (Ont. C.A.))
[12] This principle in R. v. Lessard was considered further by the Ontario Court of Appeal in R. v. Griffith, 2013 ONCA 510. At paragraph 12 of Griffith, the court made the following comments:
On the basis of this court’s decision in R. v. Lessard (1977), 1976 ONCA 1417, 30 C.C.C. (2d) 70, it cannot be doubted that the trial judge was not functus until he imposed sentence. In Lessard, Martin J.A., speaking for the court, held that a judge sitting without a jury is not functus officio until he has imposed sentence or otherwise finally disposed of the case. Therefore, a judge who has made a finding of guilt, either as a result of a guilty plea or on disputed facts, is empowered to vacate the adjudication of guilt at any time before a sentence is imposed. In Lessard, the court held that the trial judge had the power to grant an application by the accused to reopen his case after a finding of guilt so that he could adduce further evidence. But, at p. 73, Martin J.A. stressed that the power to vacate the adjudication of guilt after a trial “should only be exercised in exceptional circumstances and where its exercise is clearly called for.
The onus is on the applicant and this threshold is a high one to meet.
[13] The principles to be considered by a court to reopen a proceeding after conviction to receive fresh evidence are the same principles that apply to applications for fresh evidence on appeal. As set out in R. v. Palmer, 1979 SCC 8, [1980] 1 S.C.R. 759, the court should consider the following:
(a) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;
(b) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(c) The evidence must be credible in the sense that it is reasonably capable of belief; and
(d) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[14] These principles were discussed and re-examined in R. v. Reeve, 2008 ONCA 340, [2008] O.J. No. 1680 wherein Doherty J.A., speaking for the Ontario Court of Appeal, at paragraph 66 of that decision stated the following:
This court recently examined the Palmer analysis at length in Reference re Truscott (2007), 2007 ONCA 575, 225 C.C.C. (3d) 321 at paras. 80-125. As explained in Truscott, the Palmer analysis asks three questions:
Is the evidence admissible under the operative rules of evidence?
Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
What is the explanation offered for the failure to adduce the evidence at trial and should the explanation affect the admissibility of the evidence on appeal?
[15] As recently as in 2017, the Ontario Court of Appeal in R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40 relied on the principles of R. v. Palmer to consider whether fresh evidence would be admitted “in the interests of justice”.
[16] In the application, Dr. John Richard Middleton Smith filed an affidavit sworn on May 25, 2018, which was entered as Exhibit 2 on the application. Dr. Smith testified via video link at the hearing of the application and adopted the contents of his affidavit as the basis for his examination in-chief. Prior to giving his evidence, Dr. Smith was qualified as an expert in the area of biology of HIV, risk of transmission of HIV and diagnosis. Dr. Smith indicated in his evidence that he was uncomfortable being qualified as an expert in the treatment of HIV as he retired from that area of practice upon reaching 65 years of age, some ten years ago. There was no contestation by the Crown that Dr. Smith be qualified as an expert to give opinion evidence in the aforementioned areas.
[17] In his evidence, Dr. Smith indicated that he reviewed the evidence given by Dr. Wendy Wobeser at the trial. Dr. Smith also indicated that he was previously unaware of Dr. Wobeser and that he had no discussions with Dr. Wobeser about the opinion he was expressing.
[18] With respect to his view of the evidence given by Dr. Wendy Wobeser at trial, the following are comments by Dr. Smith which are contained in his affidavit sworn on May 25, 2018:
The current consensus of medical professionals has changed since my testimony in R. v. Mabior. That change is reflected in the evidence I provided in the R. v. Thompson case and, to some extent, was explained by Dr. Wobeser in her evidence. However, in one key respect, Dr. Wobeser’s evidence was, in my opinion, wrong and based on a misapprehension of the studies that she referred to in answering questions and a misunderstanding of the current state of scientific understanding.
In the course of her testimony Dr. Wobeser opined that based on the various studies and current scientific understanding, condom usage in “real world” only provided 80-85% effectiveness against the risk of transmission based on the possibility of breakage or slippage.
The evidence was given in the context of being asked questions about the 2014 “Consensus Statement” which was also marked as an exhibit at the trial. This statement is signed by virtually all the Canadian experts in the field of HIV diagnosis, treatment and transmission and it stated, among other things, that “when correctly used and no breakage occurs, condoms are 100% effective at stopping the transmission of HIV”. This statement reflects a shift in scientific thinking since the Mabior case as a result of both new evidence, and, the decline in HIV hysteria due to the development of new treatments that have rendered HIV no longer a fatal illness.
Although she agrees with the Consensus Statement, the overall thrust of Dr. Wobeser’s evidence was that in the “real world” condoms are only the 80 to 85% effective in reducing the transmission of HIV, which is not consistent with the Consensus Statement. With all due respect, Dr. Wobeser has misapprehended the data in relation to the 2001 Cochrane public health statistics, which is where the 80 to 85% is derived from. That is a general statistic that included circumstances where people did not use condoms properly and/or inaccurate reporting on the part of the participants to the study. In my opinion, Dr. Wobeser was wrong in her interpretation, and her opinion that condoms are closer to 80% effective in all cases displays an abuse of the statistics relied on in the Cochrane study. It is simply incorrect to state that in my individual case condoms are only 80-85% effective. In my opinion an individual who always uses a condom and is careful in its use can be almost 100% sure that the HIV virus will not be transmitted.
In my opinion, it is agreed amongst the medical profession, that as far as science has been able to determine, condoms are near 100% effective in preventing HIV transmission if correctly used. I say near 100% because of the negligible prospect that even when properly used, there may be an unknown problem with the condom that allows transmission of bodily fluid.
[19] Dr. John Smith was cross-examined by Crown counsel. In his evidence Dr. Smith testified that, “It is a widely accepted fact that condoms represent a physical impermeable barrier to both semen and in particular, HIV”. When asked in cross-examination what the qualification “when used correctly” meant, Dr. Smith gave the following evidence:
A. Used correctly is somewhat arduous, but if someone is using their condoms frequently, the issue of the condom being in good condition should not be a problem. If the package is opened correctly, there should be no damage to the condom. If the – the reservoir tip on the condom is squeezed between the thumb and forefinger to express the air, prior to and during application, there should be no risk of shearing forces tearing the condom. If the condom is rolled down the full length of the penis, there should be no risk of escape of fluids from the condom. If a condom is held in place dur...is in place at the time of initial penetration and is held in place till final withdrawal, it would be 100% protective for transmission of HIV.
It was Dr. Smith’s evidence that when these prerequisites are done, condoms are 100% effective. It was also the evidence of Dr. Smith that if one of the prerequisites described above are not done, then the condom would be used incorrectly. Dr. Smith was definite in the evidence he gave during cross-examination that all of the six steps described must be done correctly for the condom to be used correctly, and therefore be 100% effective.
[20] In cross-examination Dr. Smith agreed to the suggestion put to him by Crown counsel that there is a difference between efficacy and efficiency when it comes to condom use. Dr. Smith agreed with the suggestion that the Cochrane meta-analysis was looking at the effectiveness of condom use in preventing the transmission of HIV at the population level and not whether an individual was careful and correct in the use of a condom. As Dr. Smith stated in his evidence that in efficacy “what we’re talking about is the best use or correct use of condoms”.
[21] At paragraph 12 of his affidavit sworn May 25, 2018 (Exhibit 2 on the application), Dr. John Smith makes the following statement:
In my opinion, the context in which the meaning of the science and how it is assessed in this area has changed considerably since the initial Mabior trial in 2008. Medical management protocols are based in part on scientific studies and on professional consensus. In my opinion, the change of medical consensus about the effectiveness of condoms by the medical profession, which receives support from the studies of condom use in China as reported in the Liu Study (2014), has provided greater clarity, and carries particular weight, especially when the overwhelming majority of leading experts in the field endorse this change, as I do.
[22] In cross-examination, Dr. Smith was asked about this paragraph in his affidavit and in particular the words “this change” in the last sentence of the paragraph. In response, Dr. Smith testified that, “Well, in particular, I was referring there to the reliability of viral load below the level of detection as being sufficient to ensure that there would be no transmission of HIV. I think that actually, that’s really what I was mostly referring to there”.
[23] In other words, the change recognized by the leading experts in the field, is the changes in anti-retroviral medication and treatment. This is the evidence of Dr. John Smith and this was the evidence given by Dr. Wendy Wobeser at the trial of this matter. (See paras. 89 and 90 of my reasons for judgment released on November 15, 2017).
[24] In discussing the studies that exist that were brought to the attention of this court during the trial of this matter, it was acknowledged by Dr. Smith in his evidence that these are studies of effectiveness, not efficacy. Dr. Smith acknowledged in his evidence that the Cochrane Study is still used and relied upon as the basis for other systematic reviews and studies pertaining to condom use, with the qualifier provided by Dr. Smith that “its limitation for the individual act remains”.
[25] In his evidence, Dr. Smith could not point to other studies or more recent studies that alter the conclusions in the studies (such as Cochrane or Patel) referred to this court at the trial of this matter. When asked about the Cochrane Study and understanding the conclusions reached in that study from a scientific point of view, the following exchange between Crown counsel and Dr. Smith took place:
Q. And when we talk about the Cochrane Study and understanding statistics from a scientific perspective, is the Cochrane Study a group of one person being studied or is it studying a cross-section of the population, a larger group?
A. It’s a large group, yes.
Q. And is there anything inconsistent with your conclusion about 100% effectiveness for the individual using the condom correctly and the science behind the Cochrane Study which studies a group of people with all the various caveats that you describe – is there anything scientifically inconsistent with that?
A. Don’t think so. By the way, I would say almost 100% - I think there’s a negligible risk, but there might be some.
Q. And in terms of the opinion of Dr. Wobeser that you looked at and you spoke about in your affidavit, ultimately, do you agree with her conclusion about the 80 to 85% or not?
A. Well, I agree that as a group of people that probably might be the ballpark figure, but for an individual, it would not be possible to say that, no.
Q. And because that would depend on whether the individual was in fact using the condom correctly and consistently, is that right?
A. Correct.
[26] As indicated earlier in these reasons, one of the tests set out in R. v. Palmer, as amplified in R. v. Reeve, is the answer to the question, “Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?” This cogency test was recently considered and applied by the Ontario Court of Appeal in R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40. In my view, the evidence of Dr. John Smith does not meet the cogency test in that it is not new evidence or different evidence than the court had before it at the trial of this matter.
[27] The evidence of Dr. John Smith does not add anything new to the evidence of Dr. Wendy Wobeser and in most respects is the same evidence that Dr. Wobeser gave at the trial of this matter. It was the evidence of Dr. Wobeser that when a condom was used properly there is no opportunity for seminal fluids to enter the vaginal cavity, thereby providing 100% protection. Dr. Wobeser testified about the preconditions required for effective condom use. These were the same preconditions which Dr. John Smith gave in his evidence. As Dr. Wobeser indicated in her evidence, “So if everything works, the best case scenario, the risk of transmission would be zero”.
[28] Dr. Wobeser acknowledged in her evidence at trial that the Cochrane Study placed the prevention rate for the transmission of HIV infections with condom use in the 80 to 85% range. Dr. John Smith made the same acknowledgement of what the Cochrane Study concluded in his evidence before the court. The Cochrane Study is talking about a cross-section of the larger population. In talking about 100% effectiveness of condom use, Dr. Wobeser and Dr. Smith were both discussing individual use where the numerous preconditions for effective condom use were followed. There is no difference between the evidence of Dr. Wobeser and Dr. Smith on this point.
[29] There is nothing in the evidence provided by Dr. John Smith that adds to or is substantially different to the evidence provided by Dr. Wobeser. Dr. Smith’s evidence adds no probative value with respect to the issue before the court at trial.
[30] The acts of sexual intercourse between Mr Goodchild and the complainants took place in parks, in the bush, and within the confines of a car. These are not optimal places for the arduous preconditions for complete effective condom use to be applied. As noted in paragraphs 85 and 86 of the judgment of this court,
[85] The act of sexual intercourse is not a theoretical concept where theoretical statistics and theories should be applied. It is, rather, a real life action where real life scenarios and real life numbers should be applied. In theory, if all is perfect it may very well be that condom use is 100% effective in transmitting the HIV virus, but the sexual act between two people is not a theoretical experience; it is a real life action where realistic approaches should be taken especially when it concerns the realistic possibility of the transmission of the HIV virus, which is still a life threatening virus if left untreated.
[86] Both the Patel study and the Liu paper were published in 2014, after the Supreme Court of Canada decided Mabior. Both Patel and Liu were referred to extensively at the trial. Both the Patel study and Liu paper talked about condoms being used correctly and no breakage occurring and based conclusions on theory rather than on a real life analysis. It is interesting to note that when Dr. Wobeser was asked about the ranges based on the old studies at 80% effectiveness to the Liu and Patel studies of 99% effectiveness, Dr. Wobeser placed the number “closer to 80/85” when discussed in terms of the real world. Again, this is the same range of real world effectiveness that the Supreme Court of Canada had by way of scientific evidence when that court decided Mabior.
[31] For the forgoing reasons, the evidence of Dr. John Smith does not meet the test of cogency as required in the jurisprudence sufficient to reopen the conviction of Nicholas Goodchild to receive that evidence. In my view, the evidence of Dr. Smith is no different than the evidence of Dr. Wendy Wobeser on the effectiveness of condom use, and does not add anything new or different by way of evidence that was available to the court at the trial of this matter. Given this conclusion, it is not necessary for the court to consider the other facts set out in R. v. Palmer, such as the exercise of due diligence in obtaining the evidence sought to be introduced. For the foregoing reasons, this application is dismissed.
Gareau J. Released: July 10, 2018