WARNING

The court hearing this matter directs that the following notice be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) of the Criminal Code has been made. The penalties of violating this order are set out in 486.6. 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

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 Information

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen — And — J.H.

Counsel:

• M. Scott, for the Crown
• J. Shime, for the Offender

Heard: November 15, 2012

REASONS FOR SENTENCE

MELVYN GREEN, J.:

A. INTRODUCTION

[1] J.H., the offender, pled guilty to a single count of sexual assault. The Crown proceeded by way of summary conviction. The offender's plea was not entered at the earliest opportunity, but, in the circumstance, its timing is of mitigative value.

[2] The offender's guilt is founded on the uninformed nature of the complainant's consent to sexual intercourse with him. The offender knew he was likely infected with HSV-2 (genital herpes) at the time he had sexual relations with the complainant. She would not have consented had she known this risk. In the result, she contracted the virus with most unfortunate consequences, as detailed in a frank, moving and courageous victim impact statement.

[3] The offender is in his mid-30s. He has no criminal antecedents. He is employed, positively contributes to his community, is of generally good character and is genuinely remorseful. A conviction may well lead to his removal from Canada, his home for the past decade.

[4] In these circumstances, and particularly the latter, the defence urges the imposition of a conditional discharge coupled with a period of probation on reparative and otherwise appropriate terms. Crown counsel recommends a custodial disposition of no greater than six months. She takes no objection to the term of imprisonment being served in the community by way of a conditional sentence or, if no more than 90 days, by way of an intermittent sentence.

[5] There is very little if any jurisprudential guidance with respect to the appropriate sentence in the fact scenario presented by this case. Perhaps as a result, counsel agree that the prosecution has proceeded as something of a "test case".

B. BACKGROUND

(a) Procedural History

[6] The offender's trial began with a defence application pursuant to s. 276 of the Criminal Code to adduce evidence, in particular through cross-examination of the complainant, that she had engaged in sexual activity with others and, thus, possibly contracted undiagnosed and otherwise undetected HSV-2 through her sexual contact with previous partners. As the s. 276 hearing developed, this application was supplemented by another seeking production of certain clinical records of the complainant. In the relatively unique circumstances of this case, I ordered production of portions of the complainant's clinical records and permitted a broad right of cross-examination in a number of highly personal areas. While the sanctioned fields of examination were both relevant to and potentially probative of viable issues at trial, their testimonial pursuit would inevitably intrude on the complainant's privacy interests and, at minimum, cause her some anxiety and distress.

[7] Crown counsel's direct examination of the complainant was completed without significantly touching on the areas of sensitivity. The trial was adjourned pending the complainant's cross-examination. On resuming, the offender signaled his intention to plead guilty to the charge of sexual assault. In the result, the complainant was spared any cross-examination and, more particularly, having to answer questions pertaining to her sexual hygiene or activity with persons other than the offender.

[8] The nature of the preliminary motions and the charge itself led to a number of orders prohibiting the publication, broadcast or transmittal in any way of any information that could identify the complainant or any witness. That order, pursuant to s. 486.4 of the Code, applies as well to these sentencing proceedings. Given the history of the matter, it also serves to explain why the offender's name is here initialized.

(b) Evidentiary Foundation

(i) Facts Relevant to the Plea

[9] The offender's plea is founded on an agreed statement of facts. A summary follows.

[10] The offender and the complainant were introduced in early March 2011. They agreed to meet a few days later and their date culminated in unprotected sexual intercourse at the complainant's apartment that evening. The offender had not been diagnosed as herpes positive but he knew he was likely infected and he failed to advise the complainant before she consented to engaging in sex with him.

[11] Approximately a week later the complainant attended a medical clinic where she was tested for sexually transmitted diseases. She became very ill the same evening, suffering debilitating symptoms that endured for several days. After a further week the complainant learned that she had tested positive for HSV-2, a strain of genital herpes.

[12] The complainant continues to have outbreaks on a roughly monthly basis. Since April 2012 she has been taking medication to suppress the virus and any related outbreaks.

[13] The offender acknowledges that he had a legal obligation to advise the complainant that he likely had herpes at the time they first had unprotected intercourse. He further acknowledges his failure to inform the complainant of his likely herpes infectivity exposed her to a significant risk of infection and bodily harm, risks that were here realized.

[14] Although not expressly set out in Crown and defence counsel's stipulation, the common understanding is that the complainant would not have consented to unprotected sexual activity with the offender if she had first known that he likely carried the HSV-2 virus.

(ii) The Offender's Antecedents

[15] The offender is currently 36 years of age. He is single, has no children, and, as earlier noted, has no prior involvement with the criminal justice system. He immigrated to Canada from the United Kingdom in 2002 and has been a "permanent resident" since 2006. He has been routinely employed in the entertainment, hospitality and publishing industries.

[16] The offender is, I find, genuinely contrite. He directly apologized to the complainant in court, indicating several times that he was "truly sorry". The sincerity of his remorse is also reflected in the timing of his plea, entered, as it was, before his counsel began an inevitably invasive cross-examination of the complainant. The offender also expressed his amenability to a disposition that includes an opportunity to make amends for his criminal misconduct.

(iii) Impact on the Complainant

[17] The complaint's first outbreak of genital herpes was accompanied by unprecedented pain. Medication helps suppress the virus, but it is expensive and has uncomfortable side effects. Despite changes to her lifestyle and diet, outbreaks routinely recur, exacerbated if not provoked by the complainant's chronic anxiety condition and the triggering effects of stress.

[18] The emotional toll may be even damaging. The complainant, ordinarily a social extrovert, has grown increasingly insular. Her self-esteem and confidence have suffered profoundly. She now attends counseling sessions on a weekly basis. Her social life has been affected. She rightly, but onerously, feels obliged to inform every potential intimate partner of her viral positive status. Her trust in others has been compromised. She fears infecting friends and relatives through the most innocent of contacts. If ever pregnant, she worries about the risk of transmitting the virus to her baby during childbirth. As she succinctly says: "Having herpes has ruined my personal and sexual life".

C. ANALYSIS

[19] The offender caused harm to the complainant. However, he has not pled guilty to a charge of sexual assault causing bodily harm but, rather, to one of sexual assault simpliciter. The Crown elected to proceed summarily, which renders him liable to a maximum sentence of 18 months imprisonment. The offender pled guilty. He accepted responsibility for his criminal conduct. He is a contrite first offender with pro-social antecedents. If a custodial disposition is appropriate (whether or not implemented by way of an intermittent sentence or one served in the community through a conditional sentence), the entry of a conviction, and therefore certain immigration consequences, are ineluctable. If incarceration is not mandated, then the question is whether a conviction (by way of a suspended sentence) should still follow or whether, instead, he should be spared a conviction and, instead, be discharged. In either of the latter alternatives, as both counsel acknowledge, a period of probation on appropriate terms must be appended to his sentence to honour the purposes and principles of sentencing.

[20] As already noted, there is very little jurisprudential guidance as to the appropriate disposition in cases involving the transmission of herpes through sexual intercourse where otherwise valid consent is vitiated by fraud or non-disclosure. The sole related decision of which I am aware is that of R. v. Sherman, 2010 ONCA 462, in which the Court of Appeal affirmed the sentence of 12 months imposed at trial for offences related to the sexual transmission of genital herpes. While the circumstances surrounding the offence are not set out in Court's brief Endorsement, it is clear that the Sherman case is materially different from the one before me. Mr. Sherman was convicted of more than one offence, at least one of which, it appears, expressly involved the occasioning of bodily harm. He was only found guilty after a trial. He repeatedly had unprotected sex with the complainant despite knowing that he was infected. No information is provided as to the appellant's antecedents other than to note, significantly, that he had a prior criminal record and was on probation for domestic assault at the time he committed the offences that grounded his appeals against convictions and sentence. Unlike Mr. Sherman, the offender accepted responsibility through his plea, has no criminal antecedents (and, by way of a further distinction of some moment, certainly none involving the abuse of women) and has been found guilty of only a single offence. While R. v. Sherman confirms the propriety of a conviction and substantial sentence in appropriate cases involving the transmission of herpes as a result of uninformed consent to sexual activity, it is otherwise of little assistance in determining the fit disposition in the case before me.

[21] Accordingly, I must turn to "first principles" in crafting a correct disposition. The fundamental principle of sentencing, as set out in s. 718.1 of the Criminal Code, is that it be "proportionate to the gravity of the offence and the degree of responsibility of the offender". The objectives of sentencing include denunciation of unlawful conduct, separation of the offender "where necessary", deterrence of the offender and others, rehabilitation of the offender, reparation to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim and the community: s. 718 of the Code. Consideration need be given, as well, to a number of aggravating and mitigating factors ranging from the impact of the offence on the complainant to the offender's expression of remorse. The principle of restraint, particularly given the offender's status as a first offender, also warrants attention. As prescribed in s. 718.2:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Indeed, the fundamental principle of sentencing – that of proportionality – is itself bottomed or at least circumscribed by the penological value of restraint. As recently said by Supreme Court in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37, a sentence must reflect the gravity of the offence but the principle of proportionality also "serves a limiting or restraining function and ensures justice for the offender".

[22] Deterrence is a sentencing objective of broad application, but less so where, as here, the offender has not previously been in conflict with the criminal law. Given the notoriety and stigmatization that attended his arrest, the prosecutorial ordeal he has endured, his acceptance of responsibility and his patent contrition, I am satisfied that there is no need to craft a sentence to specifically deter the offender from misrepresenting his venereal status in future. The criminal process itself, and his sincere acknowledgement of the harm he caused, have served this important function.

[23] General deterrence and denunciation, its forensic cousin, require more careful attention. The offence is serious. Although not intended, it has had grave consequences. While not accompanied by physical coercion or violence, the offender's conduct deprived the complainant of her right to choose, to make an informed determination of whether or not to have sexual intercourse. The contemporary, Charter-infused view of consent, as recently explained by the Supreme Court in R. v. Mabior, 2012 SCC 47, at para. 45, is one,

… that respects each sexual partner as an autonomous, equal and free person. Our modern understanding of sexual assault is based on the preservation of the right to refuse sexual intercourse: sexual assault is wrong because it denies the victim's dignity as a human being.

[24] In calibrating the roles properly assigned to general deterrence and denunciation consideration must be given to some relatively unique features of the offence to which the offender has pled guilty. Transmissions of genital herpes are disturbingly common. As reported by the highly respected American Centers for Disease Control and Prevention (http://www.cdc.gov/std/herpes/STDFact-herpes.htm), " Nationwide, 16.2%, or about one out of six, people aged 14 to 49 years have genital HSV-2 infection," and approximately one million new cases occur in the U.S. every year. There is no reason to think that the population-adjusted Canadian epidemiological data are substantially different. Yet, there is very little media attention devoted to the phenomenon. There are also very few prosecutions, and almost no reported cases, of sexual assaults premised on an accused's failure to adequately inform a potential partner that he or she carries or likely carries the HSV-2 virus. It is in this sense that the matter before me may be properly seen as a "test case".

[25] Unlike HIV, there is little common intelligence about the risks associated with genital herpes or the ease with which it may be transferred from one person to another during the course of their sexual activity. This may well explain why the Supreme Court has thus far expressly declined to define the burden of disclosure in cases such as the one before me. As said in R. v. Mabior, supra, at para. 92: "Where the line should be drawn with respect to diseases other than HIV is not before us." A fresh calculus of risk will, at some point, be required with respect to genital herpes. On the one hand, for example, even a properly fitted condom offers only imperfect if not uncertain protection. On the other, HSV-2 does not carry the same fatal potentiality contemplated in Mabior.

[26] Unless he is an avid reader of the Court of Appeal's website, the offender would have not have been exposed to the legal cautions that, at least in theory, advance the objective of general deterrence. Other than treating the offender as a lamb to be sacrificed on the alter of general deterrence, there seems little point in making him the object of a sentence driven by the possibility of deterring others. What is particularly important at this stage in the evolution of public education about herpes is that others come to understand that omitting to inform one's partner of one's HSV-2 infectivity is not merely bad judgement or an act of private immorality but a crime. The imposition of just sentences in future for the failure to heed this warning will depend on the individual circumstances that obtain in each of those cases.

[27] The offence and its sequelae compel attention to the sentencing goal of denunciation. Denunciation has a symbolic role in sentencing. As explained in R. v. Proulx, 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), at para. 102, denunciation is "the communication of society's condemnation of the offender's conduct". The offender's moral blameworthiness is here reflected in his plea and the public finding of guilt that accompanies it. Given, again, the virtual absence of any legal guidance – to the offender as much as myself – it seems unfair that he should bear the exemplary burden of a renunciatory sentence. It is also important in this context to distinguish denunciation from the prohibited goal of vengeance. Although there speaking of "retribution", the words of Chief Justice Lamer on behalf of a unanimous Supreme Court in the seminal sentencing case of R. v. M.(C.A.), 105 C.C.C. (3d) 327, at para. 80, are here apt:

[U]nlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. [Emphasis in original.]

Significantly, in his very next paragraph, the Chief Justice describes denunciation as the "legitimate sibling" of retribution.

[28] Mindful of these principles and their application in the instant case, I am of the view that, in the relatively novel situation that here obtains, a carceral disposition is not essential to achieve Parliament's sentencing objectives. Tracking the language of s. 718.2(e), "sanctions other than imprisonment … are reasonable in the circumstances". A carefully crafted sentence can, perhaps more effectively than incarceration, help deter others and communicate society's condemnation of the criminal conduct that gives rise to this prosecution.

[29] This, of course, still begs the question of whether the sentence that follows must include a conviction or, in its stead, a conditional discharge. The appropriate starting point is with the legal parameters of a discharge. If not met, a suspended sentence, coupled with a period of probation, is the fit alternative.

[30] The offence to which the offender has pled is not disqualified from consideration for a conditional discharge. (In a very factually different case, the imposition of an absolute discharge following a plea to sexual assault was very recently affirmed by the Superior Court: R. v. Burton, 2012 ONSC 5920.) Accordingly, I have discretion to discharge, "instead of convicting", the accused so long as I determine such disposition "to be in the best interests of the accused and not contrary to the public interest": s. 730(1). Given the offender's lengthy and productive settlement in Canada, his positive character and the serious risk of adverse immigration repercussions that would follow a conviction, there is little difficulty in concluding that it is in the offender's "best interests" to proceed by way of a discharge. The much more challenging part of the equation is whether a discharge is "not contrary to the public interest".

[31] One consideration relevant to this second branch is the extent of the public interest in deterrence of others in light of the circumstances of the individual case: see, for example, R. v. Sanchez-Pino, 11 C.C.C. (2d) 53 (Ont. C.A.) and R. v. Fallofield, 13 C.C.C. (2d) 450 (B.C.C.A.). I have already expressed my view as to the reduced justification for a sentence predicated on achieving the goal of general deterrence in the matter before me. Further, even where required, deterrence can be achieved through means other than the entry of a conviction: see, for one very recent example, R. v. May, 2012 ONSC 6797.

[32] Of at least equal importance here is the serious risk of deportation a conviction would apparently provoke. The offender is a permanent resident in Canada. As explained by defence counsel (without demurral from the Crown), the combination of sub-ss. 36(1) and (3) of the Immigration and Refugee Protection Act renders the offender "inadmissible" to this country if he is "convicted" of the offence to which he has pled guilty. As I understand the legal consequences, the offender's only remedy from the removal order that would then follow a conviction is a discretionary appeal purely on humanitarian grounds.

[33] There are occasions when the adverse ancillary effects of a conviction risk amplifying the intended impact of a court's sentence beyond reasonable boundaries of proportionality. It is not uncommon, for example, for offenders to be granted a discharge where a conviction would frustrate continuation of their education, occupation or professional licensing and where pursuit of their trade neither imperils public safety nor otherwise embarrass the administration of justice. In R. v. Carson, 185 C.C.C. (3d) 541, for example, the Court of Appeal substituted a conditional discharge for a conviction and carceral sentence imposed on a police officer for offences of domestic assault and failure to comply with a court order where the sentence imposed at trial would have adversely affected the officer's career. As said by the Court, at para. 38:

This is a legitimate factor, among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer.

[34] While never dispositive, an offender's immigration status is another "legitimate factor … to be taken into account at a sentence hearing". R. v. Abouadabedellah, 109 C.C.C. (3d) 477 (Que. C.A.) affords one example of an appellate court granting an absolute discharge to avoid the risk of disproportionate immigration consequences. The Ontario case of R. v. El-Hamdi, 2009 ONCA 129 is another. Neither R. v. Abouadabedellah nor R. v. El-Hamdi involves an offence of sexual assault. Both, however, illustrate a more general proposition set out by the Court of Appeal in R. v. Hamilton, 186 C.C.C. (3d) 129, at para. 156:

The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act. … [H]owever, there is seldom only one correct sentencing response. The risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender.

(See, also: R. v. Lacroix, 172 O.A.C. 147, R. v. Kanthasamy, 2005 BCCA 135, 195 C.C.C. (3d) 182 (B.C.C.A.), R. v. Mai, 2005 BCCA 615, 204 C.C.C. (3d) 114 (B.C.C.A.), R. v. Hennessey, 2007 ONCA 581, 228 O.A.C. 29, and R. v. B.R.C., 2010 ONCA 561.)

[35] Taking the risk of deportation into account and then, in the words of R. v. Hamilton, supra, "tailoring the sentence to best fit the crime and the offender" among the array of "appropriate sentencing responses", I conclude that a conditional discharge is not here contrary to the public interest. I am further of the view that a properly conditioned accompanying probation order can fulfill the sentencing goals of general deterrence, through public education, and denunciation, through the repeated public mortification that will attend completion of the terms I intend to impose.

[36] My determination of this matter will not preclude the immigration authorities from considering the propriety of the offender's continued residence in Canada. Its primary impact will be to preserve his rights of review or appeal of any adverse decision should an effort be made to remove him from this country.

[37] In the end, the offender is not convicted but, rather, discharged on a conditional basis. He will be placed on probation for one year. Other than the statutory terms, he will be subject to the following conditions:

• First, he is to report forthwith to the probation office and thereafter as required until he completes a prescribed community service order to the satisfaction of his probation officer.

• Second, he is to have no communication, contact or association, directly or indirectly, with the complainant in this matter.

• Third, the offender is to complete 80 hours of community service within the first nine months of his term of probation. Although I cannot dictate the nature or location of this service, I strongly urge that the probation office endeavour to arrange for his participation in programs directed at the sexual education of persons, particularly young persons, at risk to STD transmission. The offender has affirmed his amenability to such community service.

• Finally, the offender is to sign such releases as may be necessary to permit his probation officer to monitor his involvement in and satisfactory completion of his community service.

As required by s. 490.012 of the Code, I order the offender to comply with the Sex Offender Information Registration Act (SOIRA) for a period of ten years. Given his current circumstances, the victim fine surcharge is here waived.

D. CONCLUSION

[38] The offender is ordered conditionally discharged, followed by a year of probation on specified terms. A SOIRA order completes this disposition.

Decision Released on December 3, 2012

Reasons Released on December 5, 2012

Justice Melvyn Green