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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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).

486.4(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.

486.4(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(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.

486.4(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.

486.4(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.

486.6(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: 2019-08-12

Docket: C63062

Judges: Doherty, Miller and Fairburn JJ.A.

Between

Her Majesty the Queen

Respondent

and

Steven Paul Boone

Appellant

Counsel:

Jonathan Shime and Ben Elzinga Cheng, for the appellant

Christine Tier, for the respondent

Khalid Janmohamed and Ryan Peck, for the interveners Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario

Heard: November 26, 2018

On appeal from: the convictions entered by Justice Bonnie R. Warkentin of the Superior Court of Justice, sitting with a jury, on October 31, 2012, and from the sentence imposed on March 9, 2016, with reasons reported at 2016 ONSC 1626.

Doherty J.A.:

I. Overview

[1] The appellant is HIV positive. The Crown alleged that in late 2009 and early 2010, the appellant set out to infect his sexual partners with HIV.

[2] The appellant faced an 11-count indictment involving six complainants. The jury returned guilty verdicts on nine charges involving four complainants and acquitted on two charges involving the other two complainants. The charges and verdicts are set out in chart form below.

Count	Complainant	Charge	Verdict
1	D.S.	Aggravated sexual assault	Guilty
2	D.S.	Administer a noxious thing	Guilty (stayed)
3	D.S.	Attempted murder	Guilty
4	M.C.	Aggravated sexual assault	Guilty
5	M.C.	Administer a noxious thing	Guilty (stayed)
6	M.C.	Attempted murder	Guilty
7	M.B.	Attempt to administer a noxious thing	Guilty (stayed)
8	M.B.	Attempted murder	Guilty
9	B.C.	Aggravated sexual assault	Guilty
10	D.F.	Aggravated sexual assault	Not Guilty
11	J.B.	Aggravated sexual assault	Not Guilty

[3] The trial judge concluded that a "global sentence" of 14 years was appropriate. After credit for presentence custody, the trial judge imposed a net sentence of nine years, three months. She also imposed a long-term supervision order for an additional five years.

[4] The appellant appeals his convictions with two exceptions. He does not appeal the conviction on the charge of aggravated sexual assault involving D.S. (count one) and he does not appeal the conviction on the aggravated sexual assault charge involving M.C. (count four). The appellant also appeals sentence.

[5] The Crown does not appeal the two acquittals. I need not make any reference to the evidence relating to those counts.

II. The Positions at Trial

[6] The Crown's case at trial consisted of the evidence of the complainants, two men who shared a townhouse with the appellant, hundreds of text messages to and from the appellant, some of which involved the complainants, and expert evidence from Dr. Robert Remis, an expert in matters relating to HIV.

[7] The appellant did not testify. The defence called Dr. Mark Tyndall, also an expert in matters relating to HIV.

[8] The appellant was 28 years of age when he learned that he was HIV positive in October 2009. According to his texts and his roommates, the appellant had been in a serious relationship with the person who infected him. He described himself as making the "ultimate sacrifice" for his partner. The appellant told his roommates and others about his HIV status.

[9] After learning that he was HIV positive, the appellant continued to have an active sex life. He did not use condoms. He met most of his partners on various dating websites. While most of the encounters were casual "one-night stands", some of his texts suggested the appellant was looking for, perhaps even desperate for, a more long-term, meaningful relationship. He made similar comments to his roommates.

[10] The appellant spent time online immersed in what was referred to at the trial as the "bug-chasing" culture. This phrase refers to persons who are sexually aroused by the idea of infecting others and being infected by others with HIV.

[11] In numerous texts, the appellant bragged about infecting many young men with HIV. He referred to his high viral load and his reluctance to take antiretroviral drugs because they would make it more difficult for him to infect his partners. The appellant also indicated that he routinely lied to his partners about his HIV status so they would agree to unprotected anal intercourse. He also described how he would deliberately misuse or sabotage condoms to trick his partners into thinking they were having protected sex.

[12] The appellant's online chats are replete with comments about infecting partners with HIV. A sampling is set out below:

I love turning dudes poz[2] … feels intense knowing I'm marking them for life with my dna

I want a neg[3] boy to turn poz so he's mine

I want to fuck you bare until you become poz with my poz loads[4]

Make you my poz boy for life

I'll be changing you forever

I have a high viral load right now meaning it won't take much for you to get it from me

Might get infected from the first fuck because my viral load is high and not on meds[5]

[13] In some of the text messages, the appellant spoke of infecting others with HIV and getting a biohazard tattoo with his initials and his partner's initials on the tattoo.

[14] At trial, the defence argued that the texts were in the main exchanges between individuals who frequented certain websites because they would find others who were sexually aroused by conversations about being infected with HIV and infecting others with HIV. The defence maintained that the conversations were fantasy and roleplaying. They were full of comments that were demonstrably false. M.B. and J.B., two of the complainants called by the Crown, used these websites for exactly that kind of fantasy roleplaying. The defence submitted to the jury that most things said on those websites could not safely be relied on for their truth, or as indicative of the appellant's true state of mind.

[15] The defence did, however, rely on some comments made by the appellant in the texts. For example, the defence submitted that the appellant's comments showed that he knew HIV could lead to AIDS, a disease that could be managed and lived with by the administration of appropriate drugs. It was not, as it once was, a disease that inevitably killed those who suffered from it. The defence submitted that these comments were inconsistent with an intention to kill those he infected.

[16] The Crown put forward a different interpretation of the text messages. The Crown argued to the jury that the appellant's repeated statements should be taken at face value. He deliberately and repeatedly engaged in very high-risk sexual activities, intending to infect his partners with HIV. He lied to those partners about his HIV status to achieve that end. The Crown argued that the appellant's text messages showed that he was sexually aroused by, and deeply committed to, spreading HIV to his sexual partners. He knew that HIV eventually led to AIDS, a fatal disease. He set out to infect others and eventually cause their death to satisfy his own perverse sexual desires.

[17] The appellant never expressly indicated he wanted to, or intended to, kill anyone in his text messages. However, the Crown contended that the jury could infer that intention from repeated statements made in the texts about the desire to infect partners, combined with the appellant's knowledge of the consequences of infection.

III. The Evidence of the Complainants

A. D.S. (Counts 1, 2 and 3)

[18] D.S. was seventeen years old when he met the appellant on the internet in January 2010. They had unprotected anal sex nine times in late January and early February 2010. On each occasion, D.S. was the receptive partner and the appellant was the insertive partner. The appellant ejaculated into D.S.'s anus on seven occasions.

[19] The appellant repeatedly assured D.S. that he was "clean". D.S. would not have had anal intercourse with the appellant had he known he was HIV positive.

[20] Some of the appellant's texts referred to his sexual activity with D.S. He described filling D.S. with semen and stated that D.S. did not know he was HIV positive.

[21] D.S. learned that the appellant was HIV positive in February and confronted him. The appellant initially denied being HIV positive, but later admitted to D.S. that he had lied to him about his status.

[22] D.S. was not HIV positive when he met the appellant. He tested positive for HIV in April 2010. D.S. had sexual relations with other men between the end of his relationship with the appellant and his positive HIV test. Dr. Remis, after examining the details of D.S.'s sexual contacts with others, agreed that it was highly likely that the appellant infected D.S.

[23] D.S. will be on antiretroviral medication for the rest of his life. Dr. Remis cited a study that found the life expectancy of HIV-infected individuals is about 12 years shorter than that of non-infected individuals.

[24] The defence accepted that the appellant repeatedly had unprotected anal intercourse with D.S. and did not reveal his HIV-positive status to D.S. Those facts warranted a conviction on the aggravated sexual assault charge (count 1): see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584. The appellant has not appealed that conviction. He does appeal his convictions on attempted murder (count 3) and administering a noxious thing (count 2).

B. M.C. (Counts 4, 5 and 6)

[25] M.C. was seventeen years old when he met the appellant on the internet. They agreed to meet and have sex. The appellant repeatedly told M.C. that he was "clean". M.C. and the appellant met at the appellant's home. They had oral sex without condoms. Neither ejaculated. The appellant anally penetrated M.C. twice and ejaculated into M.C. both times. He was not wearing a condom.

[26] M.C. was only interested in a "one-night stand". He resisted the appellant's attempts to establish a more serious relationship.

[27] One of the appellant's roommates told M.C. that the appellant was HIV positive. When confronted by M.C., the appellant lied and denied that he was HIV positive. M.C. subsequently tested negative for HIV. M.C. would not have engaged in sexual activity with the appellant had he known the appellant was HIV positive.

[28] The defence accepted that the appellant had unprotected anal intercourse with M.C. and did not reveal his HIV-positive status to M.C. The appellant has not appealed the conviction on the aggravated sexual assault charge involving M.C. (count 4). He does appeal the convictions for attempted murder (count 6) and administering a noxious thing (count 5).

C. M.B. (Counts 7 and 8)

[29] M.B. and the appellant met over the internet in 2009. They re-established contact in March 2010. M.B. was HIV positive in 2010. He saw the appellant's profile on a website called "Manhunt". The profile said that the appellant was HIV positive. M.B. contacted the appellant, hoping they could get together for sex.

[30] In March 2010, the appellant confirmed to M.B. that he was HIV positive and not taking any medication. M.B. lied to the appellant and told him that he thought he was HIV negative, but wanted to have unprotected sex. According to M.B., he lied to the appellant because he thought the appellant was sexually aroused by the idea of infecting others. The appellant had not said anything in his texts about wanting to infect M.B.

[31] The appellant and M.B. eventually met. They had unprotected anal intercourse. M.B. testified that he was playing into the appellant's fantasy about infecting his partners with HIV.

[32] M.B. and the appellant had unprotected anal intercourse on one more occasion. On both occasions, it was the appellant who anally penetrated M.B. He ejaculated into M.B.

[33] The appellant wanted a relationship with M.B. M.B. wanted nothing more than sex. M.B. decided to stop communicating with the appellant. They did not meet after March 15, 2010.

[34] M.B. contacted the police after he saw news articles about the appellant. In his interview with the police, he falsely claimed that the appellant had not disclosed his HIV status to him and that he would not have consented to sex had he known the appellant's status. M.B. acknowledged that he was confronted with his lies before he testified at the preliminary inquiry and that he may have lied under oath had he not been confronted before the preliminary inquiry with his lies to the police.

[35] The appellant appeals both his conviction for attempted murder (count 8) and his conviction for attempting to administer a noxious thing (count 7).

D. B.C. (Count 9)

[36] B.C. met the appellant online in December 2009 and shortly thereafter in person. The appellant assured B.C. that he was HIV negative.

[37] B.C. and the appellant engaged in anal intercourse on one occasion. The appellant penetrated B.C. B.C. insisted that the appellant use a condom. He saw the appellant put the condom on before sex and remove it afterward. B.C. could not say for sure whether the appellant ejaculated.

[38] There was no direct evidence that the appellant somehow compromised the condom he used or deliberately misused the condom when he had sex with B.C. The Crown argued, however, that many comments made by the appellant in his texts, in which he bragged about poking holes in his condoms and tricking his partners into thinking he was using a condom, provided evidence from which the jury could infer that he used one of those "tricks" after B.C. insisted that he use a condom.

[39] A short time after they had sex, B.C. saw a newspaper article about the appellant. The article indicated the appellant was HIV positive. B.C. was tested on three occasions and was HIV negative. He would not have consented to sex, even with a condom, had he known the appellant was HIV positive.

[40] The appellant appeals his conviction for aggravated sexual assault (count 9).

IV. The Expert Evidence

[41] The two experts, Dr. Remis for the Crown, and Dr. Tyndall for the defence, agreed on most matters. They agreed that HIV is incurable and, if untreated, leads to AIDS which will cause death within 10 to 15 years of infection. The arrival of antiretroviral drugs in the mid-1990s drastically reduced the mortality rate due to AIDS. With the proper use of that medication, HIV is a long-term, manageable illness. People with HIV can live healthy lives. However, the drugs are not effective for everyone and some people cannot tolerate them.

[42] Even with drug therapy, HIV reduces life expectancy by 12 years. The younger a person is when he or she contracts HIV, the more significant the impact on life expectancy.

[43] Receptive anal sex carries the highest risk of transmission of HIV. Oral sex carries the lowest risk. Condoms can reduce the risk of HIV transmission by 80 percent or more. If a condom is properly applied and used, the risk reduction is much closer to 100 percent.

[44] Ejaculation increases the risk of infection because of the volume of bodily fluid containing the virus. Pre-ejaculate also carries some, but a lesser risk of infection.

[45] The higher the infected person's viral load, the greater the risk that a sexual partner will be infected with HIV. A low viral load is fewer than 1,500 copies per millilitre of blood. The appellant had a high viral load at the relevant time of over 50,000 copies per millilitre of blood. He was aware of his high viral load and its relationship to the risk of infecting his partners.

[46] The presence of other sexually transmitted diseases increases the risk that an infected person will transmit HIV to a sexual partner. The appellant tested positive for gonorrhea in May 2009 and again in April 2010.

[47] Dr. Remis calculated the risk of transmission of HIV from the appellant to each of the complainants based on the sexual activity described by the complainants and using a per-act risk taken from different scientific studies. Dr. Remis estimated D.S.'s risk at 8.6 percent, M.C.'s risk at 2 percent, B.C.'s risk at 0.2 percent, and M.B.'s risk, had he not already been infected with HIV, at 2 percent. Dr. Tyndall agreed with these estimates.

V. The Conviction Appeal

A. Did the trial judge misdirect the jury on the mens rea for attempted murder?

(i) The elements of the crime of attempted murder

[48] The crime of attempted murder requires proof beyond a reasonable doubt that the accused intended to kill, coupled with conduct by the accused done for the purpose of carrying out that intention. The conduct must amount to "some act more than merely preparatory": Criminal Code, R.S.C. 1985, c. C-46, s. 24; United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 50; R. v. Gordon, 2009 ONCA 170, 94 O.R. (3d) 1, at para. 56. The point at which an accused's actions pass beyond preparation to the actus reus component of an attempt to commit the crime is difficult to identify in the abstract: see Eugene Meehan, Marie-France Major & John H. Currie, The Law of Criminal Attempt, 3rd ed. (Toronto: Carswell, 2015), ch. 5. The conduct component need not be itself criminal or even unlawful: The Queen v. Ancio, [1984] 1 S.C.R. 225, at p. 248; Gordon, at para. 56; R. v. Colburne, (1991), 66 C.C.C. (3d) 235 (Qc. C.A.), at pp. 248-49, Proulx J.A.

[49] The actus reus component of the attempted murder charges was not in dispute at trial. The trial judge correctly instructed the jury that if they were satisfied beyond a reasonable doubt that the appellant had ejaculated into the anuses of D.S., M.C. and M.B., that act provided the conduct component of the crime of attempted murder. The defence accepted that the appellant had unprotected anal intercourse with the three complainants and that he had ejaculated into them.

[50] The outcome of the attempted murder charges depended on whether the Crown had proved beyond a reasonable doubt that the appellant had the necessary mens rea for the offence of attempted murder. The crime of attempted murder requires proof of "the specific intent to kill". The intention to inflict harm, even significant harm, combined with recklessness as to the consequence of inflicting that harm, does not suffice to establish the mens rea for attempted murder: Ancio, at pp. 248-51.

[51] When can it be said that a person intends to kill? Certainly, a person whose purpose is to kill another, either as an end in itself or as a means to achieving some further end, has the intention to kill. However, and subject to the language of the provision creating the offence, courts have extended this everyday conception of intention to include the decision to carry out some purpose in the knowledge that killing is virtually certain to result, although the killing is neither the ultimate purpose in acting, nor the means chosen to achieve the desired purpose, and may even be deeply regretted. That is, the law treats as intended those side-effects that are foreseen to occur with virtual certainty.

[52] The well-used example of the package on the airplane usefully draws the distinction between the two notions of intent. "A" places a bomb on a plane intending that it will explode while the plane is in mid-air. He has placed a package on the plane and intends to make an insurance claim when the package is destroyed in the explosion. "A" also believes, to a virtual certainty, that the persons on the plane will die when the bomb explodes, although he does not want them to die and actually hopes that they will somehow survive. "A's" direct intention is to defraud his insurer. Whether his state of mind is described in terms of accepting the deaths as a regrettable but virtually certain side-effect to achieving his actual purpose of defrauding the insurer, or as an oblique or indirect intention to kill the occupants of the plane, it is properly characterized as intention for the purposes of the criminal law: see Dennis J. Baker, Glanville Williams Textbook of Criminal Law, 4th ed. (London, U.K.: Sweet & Maxwell, 2015), at pp. 113-22; Glanville Williams, "Oblique Intention" (1987) 46:3 Cambridge L.J. 417; see also Andrew Ashworth, Principles of Criminal Law, 5th ed. (New York: Oxford University Press, 2006), at pp. 174-81; David Ormerod, Smith and Hogan's Criminal Law, 13th ed. (New York: Oxford University Press, 2011), at pp. 108-16, 405-06; Don Stuart, Canadian Criminal Law: A Treatise, 7th ed. (Toronto: Carswell, 2014), at pp. 249-51.

[53] In R. v. Buzzanga and Durocher, (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), this court considered the mens rea requirement on a charge of wilfully promoting hatred against an identifiable group. Martin J.A., after examining the language of the section and the statutory context, concluded, at p. 381, that the word "wilfully" meant "with the intention of". He proceeded, at pp. 384-85, to articulate, with his customary clarity, the dual meaning of intention:

I agree, however (assuming without deciding that there may be cases in which intended consequences are confined to those which it is the actor's conscious purpose to bring about), that, as a general rule, a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence. The actor's foresight of the certainty or moral certainty of the consequence resulting from his conduct compels a conclusion that if he, none the less, acted so as to produce it, then he decided to bring it about (albeit regretfully), in order to achieve his ultimate purpose. His intention encompasses the means as well as to his ultimate objective.

I conclude, therefore, that the appellants "wilfully" (intentionally) promoted hatred against the French Canadian community of Essex County only if: (a) their conscious purpose in distributing the document was to promote hatred against that group, or (b) they foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet …. [Emphasis added.]

[54] Martin J.A.'s formulation of intention as including both purpose and foresight of virtually certain consequences was adopted by the Supreme Court of Canada in R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 774-75, also a case involving the offence of wilfully promoting hatred. In R. v. Chartrand, [1994] 2 S.C.R. 864, at pp. 889-90, that court again adopted Martin J.A.'s words in defining intention in respect of the offence of unlawfully taking a child under 14 with intent to deprive a parent of possession of that child. L'Heureux-Dubé J. defined the phrase "with intent to" in this way, at p. 414:

General principles of mens rea apply to the words "with intent to", and, accordingly, in order to conclude that the mens rea of the offence under s. 281 has been made out, it is sufficient that the taker knows or foresees that his actions would be certain or substantially certain to result in the parents (guardians, etc.) being deprived of the ability to exercise control over the child.

[55] The case law and academics use different phrases, including "morally certain", "virtually certain" and "substantially certain". Insofar as they are used to describe oblique or indirect intent, I take them to have the same meaning. I prefer the phrase "virtual certainty", as to me it best connotes the very high degree of certainty required.

[56] The mental state predicated on a belief that a result is a virtually certain consequence of one's action must be distinguished from recklessness as to consequences. Recklessness refers to a state of mind in which a person decides to do an act, realizing that a specific consequence may flow from that act. Indeed, the person may realize that the consequence will probably flow from that act. That person is said to be reckless as to the consequence. Recklessness will suffice to establish criminal culpability for many offences. Recklessness is not, however, to be equated with intention based on a belief in the virtual certainty that the consequences will flow: Buzzanga, at p. 384. The mens rea required for attempted murder is not satisfied by recklessness as to the consequence. A person who appreciates that his acts may, or probably will, lead to the victim's death is not guilty of attempted murder unless killing his victim was his purpose: Ancio, at pp. 248-51.

[57] Some argue that oblique intent is a misnomer in that it does not describe a distinct culpable state of mind, but rather refers to a state of mind – a belief that a specific consequence is certain – which provides powerful evidence of an actual or direct intention to bring that consequence about: see Beatrice Krebs, "Oblique Intent, Foresight and Authorisation" (2018) 7 U.C.L.J.L.J. 1; Glenys Williams & Gavin Dingwall, "Inferring Intention" (2004) 55:1 N. Ir. Leg. Q. 69. Professor Stuart goes so far as to describe the distinction between direct and indirect or oblique intent as "pedantic" and unnecessary in the real world of criminal trials and jury instructions: Stuart, at p. 250.

[58] I accept that in most attempted murder cases, there will be no need for the trial judge to distinguish between an accused's purpose and an accused's belief as to the certainty of the consequence of his act when explaining to the jury the mens rea required for attempted murder. In most cases, it will be enough that the jury understand that if they conclude that the accused believed his actions would certainly lead to the victim's death, that belief provided powerful evidence of the intention to kill.

[59] In my view, however, the distinction can be important if the evidence in the case suggests that the accused acted with a purpose other than to cause the death of the victim. In that kind of case, the jury needs more help with the meaning of "intend to kill". The jury must understand that a purpose other than a purpose to kill, even a desire not to kill, does not necessarily exculpate on a charge of attempted murder. It is equally important that the jury understand that in the absence of proof that the accused's purpose was to kill, the Crown can succeed only by demonstrating beyond a reasonable doubt that the accused believed that the victim's death was a virtually certain consequence of his actions.

[60] There is no impediment to holding that the intention to kill for the purposes of attempted murder encompasses both forms of intention described in Buzzanga. Ancio, which firmly rejects recklessness as a basis for the mens rea of murder, does not consider whether a belief in a virtual certainty that a consequence will occur can be a form of intent. There is English authority that accepts that oblique intent will suffice for attempted murder: see R. v. Walker, (1989) 90 Cr. App. R. 226.

[61] Nor is there any policy basis for distinguishing between the two forms of intent described in Buzzanga. A person who decides to commit an act believing, to a virtual certainty, that the act will cause the death of another is surely as culpable as a person who acts for the purpose of killing another. Indeed, the two states of mind are so clearly compatible that in many cases if one exists, so will the other.

[62] Most significantly, this court, in an earlier appeal brought by the appellant, has held that oblique intent, as described in Buzzanga, can support a conviction on the attempted murder charges. The appellant was discharged at his preliminary inquiry on the attempted murder charges. The Crown successfully brought a motion to quash the discharges: R. v. Boone, 2011 ONSC 5889. On a further appeal by the appellant, this court affirmed the decision of the Superior Court: R. v. Boone, 2012 ONCA 539. Simmons J.A., speaking for the full court on this issue, described the appellant's potential liability for attempted murder in these terms, at para. 36:

If the appellant believed that by infecting his sexual partners his conduct would, in the absence of intervening circumstances that might cause their death, inevitably kill them, in my view, it would be open to a trier of fact to find that he possessed a specific intent to kill.

(ii) The positions of the parties at trial on the attempted murder counts

[63] As I read Crown counsel's closing argument to the jury, she did not specifically invite the jury to find that the appellant set out to infect and kill his sexual partners. In other words, she did not argue that the appellant's purpose in infecting his partners was to kill them. She argued for a form of intention akin to the oblique intent described in Buzzanga.

[64] For example, Crown counsel said:

Mr. Boone's specific desire is to infect people. His motive is the satisfaction of his own perverse sexual desires, and he knows that by infecting these men it is predictable that the HIV infection will cause their deaths. Of course he knows this. Everyone knows this. He sets about trying and hoping to infect them, doing the very thing that he knows can kill them – certainly will kill them, absent medical intervention. [Emphasis added.]

[65] As I understand it, the Crown's case rested essentially on this chain of reasoning:

• the appellant intended to infect his sexual partners with HIV;
• to maximize the chances of achieving that goal, he lied to his partners about his HIV status, engaged in unprotected anal intercourse, knowing that he had a very high viral load and continued to lie to his partners about his status, thereby reducing the likelihood that the partners would seek medical assistance;
• he believed that HIV could lead to AIDS, a deadly disease; and
• he believed that without treatment, death from AIDS was an inevitable consequence at some point in the future.

[66] The defence argued that there was no evidence that the appellant wanted to or meant to kill his partners in the sense that their death was his purpose or the desired outcome. As counsel put it: "Mr. Boone wanted to date them, not kill them."

[67] Defence counsel also addressed the oblique intention theory of liability:

[U]nlike the scenario where the gun is placed to the head and death is almost certain, the same cannot be said for contracting HIV. Is death a possibility? Sure it is. Did Mr. Boone know that? He did. But is death probable or predictable such that you can infer he had specifically intended to kill these men? No.

(iii) The trial judge's instruction

[68] In her instructions, which were in many respects a model of clarity, the trial judge told the jury:

The crime of attempted murder requires proof of a particular or specific state of mind. Crown counsel must satisfy you beyond a reasonable doubt that when he did the things that amount to an attempt, Mr. Boone meant to kill [D.S.], [M.C.] and/or [M.B.]. Nothing less will do. [Italics in original; underlining added.]

[69] In the course of their deliberations, the jury asked:

[I]n the case of attempted murder, where state of mind is important, does killing the person need to be the primary goal of the act in order to find a verdict of guilty?

[70] The trial judge's answer reinforced the earlier instructions about the nature of the intent required for attempted murder:

A person may act with more than one intent. Killing the person does not have to be the primary intent. However, Crown counsel must satisfy you beyond a reasonable doubt that when he did the things that amount to an attempt, Mr. Boone meant to kill [D.S.], [M.C.] and/or [M.B.]. Nothing less will do.

[71] The trial judge offered no further explanation of the requisite intent beyond repeated references to the requirement that the Crown prove that the appellant "meant to kill". She did tell the jury that they could (not must) infer that the appellant intended the natural and probable consequences of his act. The trial judge also reviewed the evidence pertaining to the appellant's desire to infect others, his knowledge of the effects of HIV, the expert evidence and other evidence that might provide insight into the appellant's intention when he had sex with each of the complainants named in the attempted murder charges.

(iv) The appellant's arguments

[72] The appellant alleges five specific errors. He submits that the trial judge failed to distinguish between an intention to infect a sexual partner with HIV and an intention to kill that partner. Only the latter could justify a conviction for attempted murder. The appellant further contends that the trial judge failed to make it clear to the jury that the Crown had to prove an intention to kill and that nothing less than an intention to kill would suffice. The appellant argues that the trial judge should have told the jury that an intention to infect with HIV and thereby cause harm, even serious harm, was not enough. Nor was it enough that the appellant may have foreseen the risk, or even the probability of death.

[73] The other three arguments put forward by the appellant are directed at the manner in which the trial judge related the evidence to the mens rea requirement for attempted murder. The appellant submits that, on the evidence adduced in this case, the "common sense" inference instruction that a person intends the natural consequences of his act had no place and was misleading. The appellant also argues that the trial judge did not adequately relate the expert evidence concerning infection rates and the likelihood of death as a result of being infected to the mens rea requirement. Finally, the appellant submits that the trial judge should have cautioned the jury about drawing inferences as to the appellant's state of mind exclusively from circumstantial evidence.

(v) Analysis

[74] Jury instructions must equip the jury with the information needed to properly decide the case. The trial judge must explain the legal principles and relate those principles to the issues and evidence that arise in the case. In most attempted murder prosecutions, as counsel for the appellant acknowledges, it will be enough for the trial judge, when explaining the intent required for attempted murder, to track the language of s. 229 (a)(i) of the Criminal Code. The trial judge will instruct the jury that the Crown must prove that the accused "meant" to (or was "trying to") kill the victim. The trial judge took that approach.

[75] I agree with counsel for the appellant that this was a case in which a more detailed explanation of the mens rea component of attempted murder was necessary. While telling the jury the appellant must have "meant to kill" the complainants would clearly include a finding that when the appellant infected his partners, he did so with the purpose of killing them, that was not the primary basis upon which the Crown advanced its case of attempted murder. The Crown repeatedly spoke in terms of the appellant's belief with respect to the consequences of intentionally infecting his sexual partners. The Crown referred to the appellant's belief that death was "at least a predictable consequence" of infection. The Crown also put the appellant's liability for attempted murder in these terms:

[H]e deliberately tried to do something he knew would probably ultimately kill his victims, and he did it anyway. From this, you can absolutely conclude that every time he tried to infect one of his victims, he did so with the intent to kill.

[76] As the Crown's main theory on the attempted murder was predicated on the appellant's belief as to the consequences of his actions, it was incumbent on the trial judge to tell the jury exactly what the Crown had to prove beyond a reasonable doubt to establish the requisite intent on the theory advanced by the Crown. The Crown had to prove that:

• the appellant intended to infect each of the complainants with HIV; and
• the appellant believed, absent medical intervention, that death at some point in the future was a virtual certainty as a consequence of contracting HIV.

[77] It was also crucial that the trial judge relate the evidence to both the appellant's intention to infect his partners, and the appellant's belief that, absent medical intervention, his partners' deaths from AIDS, at some point in the future, was a virtual certainty. While the trial judge reviewed the relevant evidence in a fair and balanced manner, she did not relate it to the appellant's state of mind as described above. This failure was particularly important in respect of the contention that the appellant believed that, absent medical intervention, his partners' deaths from AIDS was a virtual certainty.

[78] In my view, the phrase "meant to kill", without more, would not inform the jury that they could only find the requisite intent based on the appellant's belief with respect to the consequence of death if they were satisfied that the appellant believed that death was a virtual certainty. There was a real risk that the jury would proceed on the basis that the phrase "meant to kill" included a belief by the appellant that death was a possible, or even a probable outcome of his actions. Neither is sufficient to establish the mens rea for murder.

[79] That risk was enhanced by the trial judge's summary of the Crown's position:

Mr. Boone knew the terrible and fatal consequences of being infected with HIV, and by anally penetrating [the complainants] and ejaculating inside them, he was doing exactly what he knew would be most likely to bring about that very result. To satisfy his own perverse sexual desires, he attempted to infect them with HIV, knowing that if he succeeded, he could also succeed in causing their deaths. [Emphasis added.]

[80] If the appellant believed that his actions "could also succeed in causing their deaths", but it was not his purpose to cause their deaths, the appellant was not guilty of attempted murder. The Crown had to prove either that the appellant's purpose was to kill his partners, or that he believed that eventual death from AIDS was a virtual certainty.

[81] There was evidence that the appellant knew that his partners could be infected with HIV. Indeed, there was strong evidence that he wanted to infect his partners with HIV. There was also evidence that the appellant knew that HIV could lead to AIDS and to death at some point in the future if left untreated. However, the evidence capable of supporting the inference that the appellant believed that death at some point was a virtual certainty was not strong. There was also a body of evidence suggesting that the appellant understood that even if his partners were infected with HIV, death from AIDS was far from a certainty.

[82] It is important to bear in mind that in the context of the mens rea inquiry, it is the appellant's purpose or his subjective belief about the likelihood of death as a consequence of infection that matters. The expert evidence speaks to the state of scientific knowledge and statistical possibilities of infection and death. That evidence is not directly relevant to the appellant's belief or his purpose, although it may, if somehow connected to the appellant's state of mind, assist the jury in deciding what the appellant believed.

(vi) Summary

[83] It was essential that the jury be told that it could convict the appellant on the attempted murder charges only if satisfied beyond a reasonable doubt that the appellant acted with the purpose of killing each of the complainants, or that he believed their death at some point in the future from AIDS was a virtually certain consequence of HIV infection. The trial judge did not give those instructions and did not relate the evidence to the issues arising from the issue of the appellant's foreseeability of the certainty of the consequences of his acts.

[84] In light of the Crown's arguments at trial in support of the attempted murder charges, there was a real danger that without the specific instruction outlined above, that the jury would proceed on the basis that the appellant "meant" any consequence that he saw as a possible or probable consequence of HIV infection. The trial judge's instructions with respect to the mens rea for attempted murder revealed non-direction, constituting misdirection. I would quash the attempted murder convictions.

(vii) The "common sense inference" instruction

[85] Although I would quash the attempted murder convictions for the reasons set out above, I will address one other argument advanced by the appellant. I agree with counsel for the appellant that the "common sense inference" instruction given by the trial judge in respect of the attempted murder charges was inappropriate and potentially misleading in this case.

[86] In instructing the jury on the state of mind required to establish the offence of attempted murder, the trial judge told the jury:

You may conclude, as a matter of common sense, that if a person does something that has natural and probable consequences, sometimes also referred to as predictable consequences, that person usually intends or means to cause those consequences. But that is simply one way for you to determine a person's actual state of mind, what he actually meant to do. It is a conclusion that you may only reach, however, after considering all the evidence. [Emphasis in original.]

[87] The "common sense inference" instruction is part of most jury instructions. It is an example of the more general instruction to juries that they should use their common sense in deciding the issues, including the inferences that should or should not be drawn about an accused's state of mind.

[88] The "common sense inference" instruction, however, assumes that the act or acts in question have natural and probable consequences. If, as a matter of common human experience, an act commonly produces a certain result, it makes sense, absent some other explanation, to infer that the person who did the act intended the result which commonly flows from doing the act. Thus, if "A" stabs "B", it is usually safe to infer he intended to cause "B" bodily harm. The more likely, as a matter of common human experience, the consequence is to flow from the action, the stronger will be the inference that the person intended that consequence. Properly used, the "common sense inference" is a helpful tool to be used in assessing the evidence going to the accused's state of mind: Baker, at p. 115.

[89] The "common sense inference" instruction is helpful, however, only if, as a matter of common human experience, there is a close causal connection between the act and the consequence which is material to the criminal charge. Can it be said that a close causal connection exists either between the sexual activity engaged in by the appellant and the infection of his partners, or between the infection of his partners and their ultimate death from AIDS? The evidence says no to both questions. Indeed, the expert evidence indicates that neither infection as a result of the sexual activity, nor eventual death from infection can be accurately described as "natural and probable consequences".

[90] It could be argued that, as a matter of logic, the "common sense inference" instruction would have assisted the appellant in that the death of his partners was not, on the evidence, the natural and probable, or predictable consequences of his actions. However, my concern is that the "common sense inference" instruction, which invites the use of common sense to draw inferences from the evidence, could be taken by the jury as an indication that it could conclude, using its own common sense, that infection and death were indeed the natural and probable consequences of the appellant's actions. Both inferences went beyond what could be inferred as a matter of common sense. Indeed, both inferences were contrary to the evidence given by the experts, the only evidence which could speak to the necessary causal connection between the appellant's actions and the consequences of those actions.

B. Was it open to the jury as a matter of law to convict the appellant of attempting to murder M.B. (count 8)?

[91] The appellant submits that, apart from the errors in the jury instruction on attempted murder, the appellant could not, as a matter of law, be convicted of attempting to murder M.B. This argument rests on the assertion that M.B.'s consent to sexual activity knowing the appellant was HIV positive effectively precludes the conviction of the appellant on any criminal charge arising out of the sexual activity.

[92] There is no doubt that M.B. knew the appellant was HIV positive and gave an informed consent to the sexual activity with the appellant. Counsel for the appellant submits that M.B.'s informed decision to have sex with the appellant, knowing he was HIV positive, not only rendered the sexual activity consensual, but also meant that there could be "no criminal liability" arising out of the sexual activity. The interveners, Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario, support the appellant's position. The interveners argue that the appellant's criminal convictions in the face of M.B.'s informed consent to the sexual activity are "offensive, discriminatory, and violate the human dignity and autonomy of people living with HIV."

[93] At trial, counsel for the appellant accepted that M.B.'s consent to unprotected sex had no impact on the attempted murder charge. Counsel at trial was correct.

[94] As Mabior makes clear, if a person consents to sexual activity knowing the partner is HIV positive, that consent is an answer to any criminal charge in respect of which the Crown must prove the absence of consent. Those charges would include assault, sexual assault, aggravated assault, and aggravated sexual assault.

[95] Mabior, however, does not create a general amnesty from criminal liability in respect of allegations arising out of consensual sexual activity with a person who is HIV positive. Mabior says nothing about liability for offences that do not require proof of the absence of consent. There are many such offences, including attempted murder.

[96] On the attempted murder charge, the Crown was required to prove that the appellant intended to kill M.B., and did something in furtherance of that intention that went beyond preparation. The conduct said to constitute the actus reus of the attempt need not be criminal or even unlawful. The culpability arises principally from the accused's mental state.

[97] M.B. could clearly not have consented to being killed by the appellant: Criminal Code, ss. 14, 241.2. I see no basis for holding that M.B.'s consent to sex with the appellant somehow negates or vitiates any essential element of the offence of attempted murder.

[98] With respect, the interveners' submission that the appellant's conduct becomes "morally blameless" because of M.B.'s consent to sex ignores the fact that to prove the attempted murder charge, the Crown had to prove that the appellant intended to kill M.B. It is a misnomer, to say the least, to describe someone who intends to kill another as "morally blameless".

[99] I also do not accept that a conviction of the appellant for attempted murder, assuming he intended to kill, is somehow discriminatory or offensive to the dignity of persons living with HIV. Anyone who intends to kill someone else, and does something beyond preparation to bring that result about, is a would-be murderer and properly accountable under the criminal law. Holding the appellant accountable, assuming he had the intention to kill, in no way imposes a special rule on him or limits his ability to engage in consensual sexual activity any more than it limits anyone else's ability to engage in sexual activity.

C. Did the trial judge err in her instructions on the offence of administering a noxious thing?

[100] The appellant was convicted of administering a noxious thing to D.S. (count 2) and administering a noxious thing to M.C. (count 5). Both convictions were stayed. The two counts were worded identically. For example, count 2 read:

And further that the said Steven Paul Boone … did, with intent to endanger the life of or cause bodily harm to another person, namely [D.S.], administer a noxious thing, namely Human Immunodeficiency Virus, contrary to Section 245, clause (a) of the Criminal Code.

[101] The offence of administering a noxious thing is created by s. 245(1) of the Criminal Code. The relevant portions of the section read:

Every one who administers … to any person … any … noxious thing is guilty of an indictable offence and liable

(a) to imprisonment for a term not exceeding fourteen years, if he intends thereby to endanger the life of or to cause bodily harm to that person; or

(b) to imprisonment for a term not exceeding two years, if he intends thereby to aggrieve or annoy that person.

[102] In this case, the indictment specifically alleged the intention described in s. 245(1) (a). The trial judge instructed the jury that it was for them to determine whether the Crown had proved beyond a reasonable doubt that the appellant meant to cause the complainants bodily harm and/or to endanger their lives. No one took issue with this instruction at trial.

[103] The appellant makes two submissions in respect of the findings of guilt on the administration of a noxious thing charges. He submits that Mabior dictates that in cases involving non-disclosure of one's HIV status, the "operative crime" is aggravated sexual assault and that there can be no liability for any other offence.

[104] As explained above (paras. 95-96), Mabior addresses non-disclosure of HIV status in the context of allegations in which the Crown is required to prove the absence of consent as an element of the offence. Consent is not an element of the charge of administering a noxious thing. Mabior says nothing about the appellant's potential liability on the charges of administering a noxious thing.

[105] The appellant also argues that the trial judge misstated the mens rea of the offence. The trial judge repeatedly told the jury that the Crown must prove beyond a reasonable doubt that the appellant "meant to cause them [the complainants] bodily harm and/or to endanger their lives."

[106] The appellant asserts that the trial judge was obliged, in keeping with Buzzanga, to tell the jury that the Crown had to prove that the appellant knew, to a virtual certainty, that his actions would endanger the lives of the complainants.

[107] I see no need for an instruction on oblique or indirect intent in respect of these charges. The Crown's case rested on the evidence that the appellant intended to infect his partners with HIV. In pursuit of that intention, he administered the noxious thing – HIV. In doing so, he immediately exposed the complainants to the risk of infection, a risk that could lead to a deadly disease. That risk clearly endangered their lives. The complainants' exposure to a risk of infection as a consequence of the appellant's actions was inevitable and immediate. That exposure endangered the complainants' lives. Unlike the attempted murder charges, an instruction that the appellant "meant to" endanger the complainants' lives adequately captured the intent requirement. These charges, again unlike the attempted murder charges, also lent themselves to the "common sense inference" instruction given by the trial judge.

[108] One additional point should be made. The appellant has not appealed his convictions on the charges of aggravated sexual assault relating to D.S. and M.C. He accepts that he had unprotected anal intercourse with those complainants, and that he lied to them about his HIV status. By not appealing the convictions, he also accepts that his conduct endangered the lives of D.S. and M.C. In light of those unappealed convictions and the findings underlying them, I would give little credence to the submission that the trial judge misdirected the jury on the requirement of an intent to endanger life as an element of the charges of administering a noxious thing to D.S. and M.C.

[109] The trial judge adequately instructed the jury on the essential elements of the offence of administering a noxious thing. She also properly stayed the convictions pursuant to the principle in R. v. Kienapple, [1975] 1 S.C.R. 729.

D. Did the trial judge err in leaving the allegation that the appellant attempted to administer a noxious thing to M.B. with the jury?

[110] Count 7 charged the appellant with attempting to administer a noxious thing to M.B. The jury returned a guilty verdict. The trial judge stayed the finding of guilt in light of the jury's guilty verdict on the attempted murder charge.

[111] It was the Crown's theory on the attempted administration of a noxious thing charge that the appellant believed that M.B. was not infected with HIV at the time they had unprotected anal sex. In fact, M.B. was HIV positive. Consequently, the Crown charged attempt rather than the full offence.

[112] In setting out the elements of the offence, the trial judge told the jury that the Crown had to prove beyond a reasonable doubt that the appellant believed that M.B. was HIV negative. If the Crown failed to prove that fact beyond a reasonable doubt, the jury was required to acquit.

[113] On this count, the Crown alleged that the appellant was trying to infect M.B. with HIV. He could not achieve that goal because, unknown to him, M.B. was already HIV positive. Impossibility is not a defence to a charge of attempting to commit a crime: Dynar, at para. 67; R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 62-64. The fact that the appellant could not infect M.B. with HIV was no legal impediment to his conviction on the charge of attempting to administer a noxious thing. Nor could M.B.'s knowledge that the appellant was HIV positive impact on the appellant's liability for attempting to administer a noxious thing.

[114] The instruction was appropriate and the trial judge properly stayed the finding of guilt on the charge in light of the jury's conviction on the charge of attempting to murder M.B.

E. Can the conviction for aggravated sexual assault in count 9 stand?

[115] It was accepted at trial that the appellant had anal intercourse with B.C. on one occasion. He lied to B.C., telling him that he was HIV negative. B.C., who was HIV negative, would not have had sex with the appellant if he knew that the appellant was HIV positive. Fortunately, B.C. was not infected by the appellant.

[116] B.C. insisted that the appellant wear a condom when they had sex. He saw the appellant put the condom on before he penetrated B.C. and saw him take it off after. B.C. could not say whether the appellant ejaculated before he removed his penis from B.C.

[117] The appellant's liability on this count turned on whether the Crown had proved beyond a reasonable doubt that there was a realistic possibility that HIV would be transmitted to B.C. during the sexual activity. If that realistic possibility existed, and in light of the appellant's misrepresentation as to his HIV status, B.C.'s apparent consent to sexual activity was vitiated. A realistic possibility of transmitting HIV also established the endangerment to life element of the offence of aggravated sexual assault: Criminal Code, s. 273; Mabior, at paras. 91-94, 104.

[118] The experts agreed that the receptive partner in anal intercourse faces the highest risk of infection from an HIV-positive partner. They also agreed that the higher the viral load of the infected person, the higher the risk of infecting the partner. The appellant had a high viral load. Were these the only two factors relevant to risk, the allegation involving B.C. would be indistinguishable from the allegations involving the other three complainants. A realistic possibility of infection would clearly exist.

[119] There were, however, two additional factors that potentially made the assessment of B.C.'s risk different than the risk assessment as it applied to the other complainants. There was evidence that the appellant used a condom when he had sex with B.C., and there was evidence that he did not ejaculate into B.C.

[120] The experts agreed that the proper use of condoms, and the absence of ejaculation, significantly reduced the risk of transmission. Dr. Remis, the Crown expert, estimated that if the appellant properly used a condom and did not ejaculate before he withdrew from B.C., the chances of infection were 1 per 1,000 acts. If the appellant ejaculated, Dr. Remis put the risk at 1 per 500 acts (0.2 percent).

[121] Dr. Tyndall testified that without ejaculation, the risk of infection decreased. He did not think that the studies permitted an accurate quantification of that reduction. Dr. Tyndall agreed with Dr. Remis that condom use reduced the risk of transmission overall by about 80 percent. Dr. Tyndall also testified that if the condom was properly applied and did not malfunction during use, the risk reduction approached very near 100 percent. Of course, no one could know ahead of any particular sexual activity whether the condom would malfunction in some way.

[122] The appellant submits that the trial judge should have instructed the jury that, in the absence of any evidence of ejaculation or the misuse or sabotaging of the condom by the appellant, the Crown could not establish a realistic possibility of transmission of HIV, thereby necessitating an acquittal on the charge.

[123] I agree with counsel for the appellant that the evidence did not permit an inference that the appellant ejaculated into B.C. I disagree that it was not open to the jury to infer that the appellant somehow sabotaged the condom before having sex with B.C. The appellant's text messages are replete with references to how he would deceive his partners by pretending to use condoms, or by poking holes into the condoms he used. It was open to the jury to infer that the appellant used one of these "tricks" in the face of B.C.'s insistence that he wear a condom. The appellant clearly preferred unprotected sex. It was also, of course, open to the jury to treat the appellant's texts as untrue and reflective of the roleplaying among the individuals who frequented these websites and not actual events.

[124] If the jury was satisfied that the appellant did something to compromise the effectiveness of the condom, Dr. Remis's evidence indicated that the risk of HIV infection would increase and could, in some situations, approach the risk associated with unprotected sex. The risk described by Dr. Remis fell well within the level of risk required to establish a "realistic risk" under Mabior.

[125] The Crown submits that for the purposes of determining the appellant's liability on the charge of aggravated sexual assault in respect of B.C., it did not matter whether the appellant ejaculated or somehow compromised the condom. Crown counsel relies on Mabior. Counsel submits that in the interests of providing "greater certainty", Mabior defined realistic risk, both at the level of principle and by reference to "concrete situations". The Crown argues that Mabior declared that a realistic possibility of transmission of HIV existed unless the infected person, both wears a condom and has a low viral load. As the appellant had a high viral load, there was a realistic risk of infection, regardless of whether he wore a condom: see Mabior, at paras. 101, 104.

[126] Crown counsel acknowledges that the court was careful in Mabior to tie the risk assessment to the evidence in the case. She submits, however, that Mabior intended to identify the existence of a realistic risk as a matter of law in certain fact situations, subject to the evidence in a particular case demonstrating the need for recalculation of the risk.

[127] There is force to the Crown's submission. However, it ignores one factor. In Mabior, the accused ejaculated into his partners. There was nothing in the evidence in this case which could support the inference that the appellant ejaculated into B.C. Does this factor, which on the expert evidence in this case reduces the risk of infection, take this case outside of the holding in Mabior to the effect that condom use only eliminates realistic risk when combined with a low viral load?

[128] In assessing what constitutes a reasonable possibility of transmission, one takes into account both the likelihood of transmission occurring and the potential harm caused if transmission occurs. The greater the potential harm, the lesser the likelihood needed to satisfy the realistic possibility of transmission requirement: Mabior, at paras. 86, 90-92. Infection with HIV remains a serious, life-changing, and life-endangering event. It is also a risk which the infected partner unilaterally imposes on the uninfected partner as a consequence of a misrepresentation as to HIV status. Even low statistical chances of transmission qualify as a realistic possibility of transmission, given that the uninfected partner never accepted any risk and the very serious harm that results if infection in fact occurs.

[129] The expert evidence in Mabior placed the risk of infection from unprotected vaginal intercourse, without a condom, and with a person who did not have a reduced viral load, as high as 1 in 384 and as low as 1 in 2,000: Mabior, at para. 97. The court held that when the risk was significantly ameliorated by either condom use, or antiretroviral therapy, but not both, the resulting risk remained a realistic, as opposed to speculative or negligible, risk: Mabior, at paras. 98-101. As I read Mabior, risks in the order of 1 in 1,000 remain realistic risks for the purposes of determining when non-disclosure of one's HIV status vitiates consent to sexual activity.

[130] On the expert evidence adduced in this case, the risk of infection, even absent ejaculation, remained at about 1 in 1,000. That risk is at least as great as the risks recognized in Mabior as sufficient to cross the realistic risk threshold.

[131] Putting the risk factors at their best for the appellant, and assuming condom use and an absence of ejaculation, B.C.'s risk of infection was in the same order at least as the risk of infection faced by the victims in Mabior. The appellant was properly convicted on this count.

F. Disposition of the conviction appeal

[132] For the reasons set out above, I would quash the convictions on the three attempted murder charges (counts 3, 6 and 8). While it seems to me unlikely that a jury would find the intent to kill, as I have described it, I cannot say that convictions on the attempted murder charges would be unreasonable on this evidence. The Crown is entitled to a new trial on the attempted murder charges if it so chooses.

[133] The convictions on the three aggravated sexual assault charges stand (counts 1, 4 and 9).

[134] The stays entered on the two counts of administering a noxious thing (counts 2 and 5) remain in place, given the convictions on the aggravated assault charges (counts 1 and 4). However, given that the attempted murder conviction in respect of M.B. (count 8) has been quashed, the stay on the charge of attempting to administer a noxious thing to M.B. (count 7) must be set aside and a new trial ordered on that count.

VI. The Sentence Appeal

[135] The trial judge sentenced the appellant on March 9, 2016. She gave extensive and careful reasons. On March 30, 2016, the trial judge heard submissions from counsel and adjusted the sentences she had imposed to accurately reflect the total sentence she had intended to impose. Having regard to the totality principle, the trial judge determined that an effective sentence of 14 years (168 months) should be imposed. She gave the appellant credit on a 1.5:1 basis for presentence custody, resulting in a credit of 1,710 days (57 months). She imposed a total net sentence of 9 years, 3 months (111 months).

[136] The sentences imposed on the individual counts were as follows:

• Attempted murder of D.S. (count 3) – 9 years;
• aggravated assault of D.S. (count 1) – 8 years concurrent;
• attempted murder of M.C. (count 6) – 1 month consecutive;
• aggravated sexual assault of M.C. (count 4) – 4 years concurrent;
• attempted murder of M.B. (count 8) – 1 month consecutive; and
• aggravated sexual assault of B.C. (count 9) – 1 month consecutive.

[137] The trial judge also imposed a long-term supervision order under s. 753.1(3) for a period of five years.

[138] As I would order a new trial on the attempted murder charges, I am concerned only with the sentences on the aggravated sexual assault convictions for the purposes of the sentence appeal. Those three sentences totalled 8 years, 1 month. However, those sentences no doubt took into account the sentences imposed on the attempted murder charge. More significantly, they also took into account, to some extent, the lengthy presentence custody. It is impossible to say what sentence the trial judge would have imposed had there not been convictions on the attempted murder charges. Given her justified concern with totality, I think it is fair to say that the sentences for the aggravated sexual assault convictions may well have been somewhat higher absent the sentencing on the attempted murder charges.

[139] The trial judge, in her careful reasons for sentence, made it clear that she regarded the aggravated sexual assault convictions as serious offences, particularly the conviction involving D.S. The trial judge described the appellant's conduct as "calculated and ruthless" and "deliberate and malicious".

[140] The trial judge also found as a fact that the appellant had infected D.S. with HIV. In doing so, she relied on the opinion of Dr. Remis. As counsel for the appellant points out, Dr. Remis did not go quite that far. On his analysis of D.S.'s encounters with other sexual partners, Dr. Remis concluded "it's far more likely that he [D.S.] was infected by Boone than by any of these partners".

[141] While the trial judge misapprehended Dr. Remis's evidence to some extent, the evidence he actually gave would, in my view, support a finding, beyond a reasonable doubt, that the appellant infected D.S. The existence of a scientific possibility that someone else infected D.S. does not preclude a finding beyond a reasonable doubt based on Dr. Remis's evidence that it was the appellant who infected D.S. Proof beyond a reasonable doubt does not require scientific certainty.

[142] While I see no reason to interfere with any of the findings made by the trial judge on sentence, or with the long-term offender order made by the trial judge, I do think the interest of justice would be best served by giving counsel the opportunity to make submissions as to the appropriate sentences on the aggravated sexual assault charges taking into account that the attempted murder convictions have been quashed. The Crown may be in a position to indicate whether it intends to proceed with the attempted murder charges. If it does not proceed with the attempted murder charges, fixing a fit sentence on the aggravated sexual assault charges may become a more straightforward matter. Counsel should make arrangements for a conference call with me to determine exactly how the sentence appeal should proceed.

VII. Conclusion

[143] I would allow the appeal from the convictions on the three attempted murder charges (counts 3, 6 and 8) and direct a new trial. I would set aside the stay on the charge of attempting to administer a noxious thing (count 7) and direct a new trial. I would adjourn the sentence appeal for further submissions, in light of the disposition of the conviction appeal.

Released: August 12, 2019

"Doherty J.A."

"I agree B.W. Miller J.A."

"I agree Fairburn J.A."

Footnotes

[1] The Crown conceded it could not prove the full offence on this count. The trial judge charged the jury on attempt. The jury acquitted.

[2] According to the glossary filed at trial, the word "poz" means HIV positive.

[3] HIV negative.

[4] Ejaculate/semen.

[5] The references come from an exhibit summarizing the text messages. The originals were not reproduced on the appeal.

[6] The two experts did disagree about whether it was possible to conclude the appellant likely infected D.S. They also disagreed as to the risk of infection via unprotected oral sex. That evidence was, however, germane only to the counts on which the appellant was acquitted.

[7] Counsel and the trial judge discussed the proposed charge at length. There were several drafts prepared. The appeal proceeded on the basis that the typed version of the charge headed "Amended Final Instructions", given to the jury, was the operative version of the instructions.