Publication Ban Warning

WARNING This appeal is subject to a mandatory publication ban under s. 278.95. This section of the Criminal Code provides:

278.95 (1) A person shall not publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under subsection 278.93;

(b) any evidence taken, the information given and the representations made at an application under section 278.93 or at a hearing under section 278.94;

(c) the decision of a judge or justice under subsection 278.93(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under subsection 278.94(4), unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction.

Publication Restriction Order

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18 .

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .

Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20221013

DOCKET: C64556

Pepall, Harvison Young and George JJ.A.

BETWEEN

His Majesty the King Respondent

and

Evans Rubara Appellant

Counsel: Wayne Cunningham, for the appellant Grace Choi, for the respondent

Heard: September 22, 2022

On appeal from the conviction entered on November 29, 2016, by Justice Michael Brown of the Superior Court of Justice.

Reasons for Decision

[1] The appellant appeals from his conviction of aggravated sexual assault. Following argument, we allowed the appeal, set aside the conviction, and ordered an acquittal with brief reasons to follow. There are those reasons.

[2] The appellant was convicted of aggravated sexual assault on the basis that he did not disclose his HIV-positive status to the complainant with whom he had a sexual relationship. He was not on any anti-retroviral therapy (“ART”). Although he is HIV positive, the appellant has a viral load described in the evidence as being from very low to undetectable. [1] He is what is referred to as an “elite controller”, which means his immune system response is naturally effective against the virus; and that his viral load, as measured by blood tests, remains very low without medication. Elite controllers, like the appellant, naturally maintain a low or suppressed viral load, which impedes the progression of HIV and reduces transmission rates. He and the complainant had a sexual relationship over a period of about three months. Before their first sexual encounter, the complainant asked the appellant if he had any sexually transmitted diseases and the appellant said he did not. The complainant testified, and the trial judge accepted, that she would not have had sex with the appellant had she known he had HIV. After learning the appellant’s HIV status, the complainant was tested for HIV several times over a period of months. All of her tests were negative.

[3] The trial judge found that the complainant’s apparent consent to sexual activity was vitiated by fraud, and as mentioned, he convicted the appellant of aggravated sexual assault.

[4] In addition to two grounds of appeal, the appellant also brings an application to admit fresh evidence. It consists of an agreed statement of facts and the opinion of an expert, Dr. Nicole Bernard. This evidence speaks to the risk of HIV transmission in circumstances like these, where there are multiple sexual encounters, no condom is used, and where the male partner has a low viral load due to a natural condition. Dr. Bernard is an immunologist with a research specialty in slow disease progression in people already infected with HIV. She has written or co-written over 50 peer-reviewed publications on the subject.

[5] The Crown agrees that much of the proposed fresh evidence satisfies the Palmer test and is admissible: Palmer v. The Queen, [1980] 1 SCR 759, at p. 775. It further agrees that Dr. Bernard is an expert on the subject of HIV-transmission. It argues, however, that some of the proposed fresh evidence does not satisfy the due diligence test and should therefore not be admitted. That said, the Crown also agrees that the appeal should be allowed if the fresh evidence to which it consents is admitted on the appeal. The Crown says that in the event it is admitted, this court should order a new trial so that the trial court can determine whether the fresh evidence, along with the rest of the evidence, leads to an acquittal. Its position is that the trial court should weigh the fresh expert evidence in light of the rest of the trial evidence: R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694, at paras. 76-77. The appellant submits that this court should admit all of the fresh evidence as it is neither practicable nor desirable to “parse” it, especially when many of the same research studies have been relied upon by both the fresh evidence and the evidence adduced at trial.

[6] At the outset of the hearing, in light of the Crown’s position, we decided after consulting with counsel, to first hear the fresh evidence application and then retire to consider the need to hear argument on the remaining grounds of appeal. After doing so, we concluded that the fresh evidence should be admitted in its entirety, that the appeal should be allowed, and that an acquittal of the appellant should be entered.

[7] First, we agree with the Crown that the fresh evidence to which it consents should be admitted. However, we do not agree that we should admit only some of the proposed evidence as asserted by the Crown. The fresh evidence is relevant, credible, and probative of the central issue at trial, namely whether consent was vitiated by fraud. The fresh evidence is decisive as it could reasonably be expected to have affected the result at trial and it is in the interests of justice to admit it: Palmer, at p. 775; see also R. v. Murphy, 2022 ONCA 615.

[8] The fresh evidence - Dr. Bernard’s affidavit – includes references to studies and scholarly papers published both before and after the appellant’s trial in 2017. The studies published after the appellant’s trial better reflect the particular circumstances of the appellant as an elite controller and more precisely identify the risk of transmission posed by such an individual. The affidavit of Dr. Bernard also includes references to, and opinions on, studies published prior to the appellant’s trial. These studies included a 2016 Consensus Statement: Risk of Sexual Transmission of HIV From a Person Living with HIV Who Has an Undetectable Viral Load which was before the trial judge, and an opinion on whether an elite controller poses a greater risk of transmission than a person on ART. Inevitably, the fresh evidence built upon prior scientific evidence which would have been before the trial judge. Dr. Bernard’s references to these earlier studies cannot be severed from the rest of her fresh evidence. In any event, the interests of justice favour admission of the fresh evidence in its entirety and we so order.

[9] The second question, having determined that the fresh evidence should be admitted and that the appeal should be allowed, is whether we should send the matter back for a re-trial, or enter an acquittal.

[10] In brief, Dr. Bernard’s evidence was comprised of two central points. First, having summarized the research, she stated that the current scientific consensus, both domestic and international, is that individuals who maintain a suppressed viral load as a result of ART are not infectious. This is entirely consistent with the evidence of Dr. El-Helou, the only expert on this issue at trial, but is reinforced by the subsequently published research.

[11] Second, she directly considered whether elite controllers, such as the appellant, who have similarly suppressed viral loads, are infectious. Her opinion was that the viral load, not the method of suppression, is what is important:

While controllers have been subject of less study, in my opinion based on a review of the literature that the risk of transmission from a controller with a viral load under 200 would be the same as a person who achieves that viral load due to ART. That is, the risk is negligible.

[12] In cross-examination on her affidavit filed in the fresh evidence application, Dr. Bernard was asked about the extent to which multiple instances of vaginal intercourse, the presence of vaginal bleeding, and variations in viral load detected in semen as opposed to plasma made a difference. Dr. Bernard’s opinion was that there is nothing in the literature to indicate any difference between the viral load of someone on ART and that of someone who is an elite controller, and that there is no scientific reason to think there would be. That is, the risk is negligible.

[13] The only issue in this case is whether there was a realistic possibility of risk of HIV transmission sufficient to constitute a deprivation on the standards set out by the Supreme Court of Canada in R. v. Mabior, 2012 SCC 47, [2012] 2 SCR 584. There is no dispute that this turned on whether there was a “realistic possibility” that the virus would be transmitted to the complainant. Given the fresh evidence about elite controllers and their viral loads, and the fact the appellant’s, at all material times, never exceeded 143 copies/mL, we are of the view that the fresh evidence, “when considered with the evidence adduced at trial, [satisfies this court] that no reasonable [trier of fact] could convict the appellant”: R. v. Manasseri, 2016 ONCA 703, 132 OR (3d) 401, at para. 216, per Watt J.A. As such, the evidence before us supports an acquittal.

[14] Accordingly, the appeal is allowed and an acquittal is entered. The appellant’s name shall be removed from SOIRA and his DNA samples shall be destroyed.

“S.E. Pepall J.A.”

“A. Harvison Young J.A.”

“J. George J.A.”

[1] In an Agreed Statement of Facts at trial, both parties agreed that between July 19, 2012, to March 4, 2014, the appellant’s viral load fluctuated from below 40 copies/mL to as high as 143 copies/mL.