Court of Appeal for Ontario

Citation: R. v. Eaton, 2010 ONCA 304

Date: 20100429

Docket: C48018

Before: Sharpe, Blair and MacFarland JJ.A.

Between:

Her Majesty The Queen

Respondent

and

Troy Eaton

Appellant

Counsel:

Ingrid Grant, for the appellant

Deborah Krick, for the respondent

Heard & released orally: April 26, 2010

On appeal from the conviction and sentence imposed by Justice Paul H. Megginson of the Ontario Court of Justice dated July 28, 2006.

ENDORSEMENT

[1] The appellant seeks to set aside his plea of guilty to aggravated assault endangering life.

[2] One of the facts relied on by the Crown for this count was that the appellant had bitten a victim and that the appellant was HIV positive. The appellant, acting on his own behalf, admitted that fact. He now seeks to introduce fresh evidence that he was not HIV positive. The appellant has filed no affidavit to otherwise explain the guilty plea or to explain why he admitted to being HIV positive on the guilty plea.

[3] In our view, the fresh evidence does not undermine the basis for this conviction. The appellant admitted administering a severe beating to the victim’s head with a vase. Moreover, the appellant also admitted that he did bite the victim and the appellant was positive for both Hepatitis B and Hepatitis C. As we read the Crown’s submission at trial, greater emphasis was placed on the risk of contracting Hepatitis C than on the HIV. This was supported by the hospital record respecting the victim’s treatment indicating that the risk of contracting HIV was less than 1% and the risk of contracting Hepatitis C was less than 2%. Moreover, quite apart from the mistaken belief as to HIV, in our view, the appellant’s conduct was sufficient to constitute the offence that he admitted, namely, aggravated assault endangering life.

[4] Accordingly, the appeal from conviction is dismissed

[5] Given our conclusion on the conviction appeal, we see no basis to interfere with the global sentence of 10 years for these offences, which included break and enter a dwelling, assault with a weapon, fail to comply with probation and the aggravated assault count. The appellant has a very lengthy record for serious offences and the attack on the victim had significant consequences.

[6] Accordingly, while leave to appeal sentence is granted, the appeal from sentence is dismissed.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“J. MacFarland J.A.”