WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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

(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) MANDATORY ORDER ON APPLICATION — 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 complainant of the right to make an application for the order; and

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

486.6 OFFENCE — (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.

Court Information

Ontario Court of Justice

Date: March 2, 2017

Court File No.: Info 3911-998-15C-1312-00

Between:

Her Majesty the Queen

— and —

J.J.T.

Before: Justice Kinsella

Heard on: December 1, 2016

Reasons for Judgment released on: March 2, 2017

Counsel:

Isabel Blanchard — counsel for the Crown

Paul Lewandowski — counsel for the defendant

Judgment

Kinsella J.:

FACTS AND INTRODUCTION

[1] Mr. J.J.T. is charged with one count of sexual assault cause bodily harm and one count of criminal negligence cause bodily harm. Both allegations arise out of events alleged to have occurred in November of 2013.

[2] This was a relatively brief trial. The Crown called one witness, the complainant A. Mc-B. The defence did not call any evidence.

[3] Ms. Mc.-B and Mr. J.J.T. were in an intimate relationship. They met in August of 2013 when both worked for the same employer and moved in together shortly afterwards, in the early fall of 2013. The relationship continued until March of 2015.

[4] In early November of 2013, around the 5th or 6th, Ms. Mc-B became ill. She was having difficulty urinating and had cold or flu-like symptoms. Initially, she thought the symptoms might be the result of a particular type of birth control she was using. She stopped using the birth control but the symptoms did not improve.

[5] Mr. J.J.T. was working the night shift during this time and, at some point, Ms. Mc-B sent him a text message conveying her symptoms and telling him she thought she needed to go to the doctor. In response to this, Mr. J.J.T. spoke with Ms. Mc-B and told her "I've given you herpes." During this conversation, which lasted about twenty minutes, he also apologized saying "Sorry. I never infected anyone else. I didn't think I'd infect you." She asked him how long he had had herpes and he told her he had contracted it in 1989 when he was graduating from high school. He also apparently disclosed to her either that he "had had an outbreak" or that he was "having an outbreak". Ms. Mc-B testified to both at various times in her testimony.

[6] Prior to this phone call, Ms. Mc-B indicated she had no idea that Mr. J.J.T. had herpes. She had never been told by him that he had the virus, nor had she seen any outwards signs of it or of any outbreak. She testified that, had she known that Mr. J.J.T. was experiencing an active outbreak of herpes, she would not have consented to have sexual intercourse with him.

[7] She went to her doctor, who diagnosed her with genital herpes and prescribed medication. Her symptoms subsided after taking the medication for a few days. During this time period, Mr. J.J.T. also apparently confirmed that he was having an outbreak and that he was treating it with hydrogen peroxide, indicating that he did not use prescription medication anymore.

[8] Once this disclosure was made, the couple continued their relationship, including continuing to engage in unprotected genital and oral sex. Ms. Mc-B testified that she had not had another outbreak of genital herpes since November of 2013. However in March of 2015, shortly after she and Mr. J.J.T. separated, she developed oral herpes (often referred to as cold sores) which she treated with an over-the-counter medication. She testified that she has had three outbreaks of oral herpes in total.

[9] Ms. Mc-B testified as to her understanding of herpes, including the fact that genital and oral herpes are caused by two separate viruses. She testified that she had received some information when she was first diagnosed, as well as sought out information on the internet. She testified that: she would not be able to give birth vaginally as a result of the illness; the virus can be triggered by stress or by a compromised immune system; she believed she had an obligation to disclose this fact to any future partners; and that she believed that she was always contagious, whether or not she was in an active outbreak, because of the existence of viral shedding.

[10] On the issue of the oral herpes, Ms. Mc-B testified that she did not know whether or not she had contracted the virus from Mr. J.J.T., although she felt she might have contracted that virus at the same time she contracted the genital herpes, and that the virus had simply lain dormant for sixteen months.

[11] Ms. Mc-B has no medical training or expertise. She was not qualified as an expert.

[12] At the conclusion of the evidence, I invited counsel to provide me with written submissions concerning the facts and applicable legal principles.

[13] The initial written submissions did not significantly address the issue of criminal negligence. However, on January 27, 2017 I heard further oral submission from both counsel on this point.

GENERAL LEGAL PRINCIPLES

[14] It is useful to review some of the relevant general legal principles applicable to this case.

[15] An accused person is presumed to be innocent. The Crown always bears the onus of proving the charge(s) against the accused beyond a reasonable doubt. That is a very high onus and one that never shifts. An accused person is not required to testify or to call any evidence, nor is he/she obligated to explain anything.

[16] This case does not turn on an assessment of either credibility or reliability. The evidence of Ms. Mc-B is not significantly in dispute. The defence accepts that she and Mr. J.J.T. were in a relationship, that they engaged in consensual sexual acts during the course of that relationship, and that Ms. Mc-B did in fact contract genital herpes in November of 2013.

[17] It would appear, as well, that the defence accepts that the herpes virus does meet the legal test for bodily harm, as it is an injury that is more than transient or trifling in nature.

[18] What is at issue, however, is the following: did Ms. Mc-B acquire herpes from Mr. J.J.T. and, if so, did that in some way either vitiate her consent or render the issue of consent irrelevant?

SEXUAL ASSAULT AND CONSENT

[19] The offence of sexual assault is created by s. 271:

271. Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding 10 years and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding 18 months and, if the complainant is under the age of 16 years, to a minimum punishment of imprisonment for a term of 90 days.

[20] Section 273.1(1) defines "consent" as follows:

273.1 (1) Subject to subsection (2) and subsection 265(3), "consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

[21] Section 265(3), which applies to all assaults, lists four situations which, if any single one is established, renders the consent void or vitiated:

265. ...

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

(b) threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) fraud; or

(d) the exercise of authority.

[22] In addition to these statutory grounds, the courts have included one further factor which can also vitiate consent, one based on public policy grounds. While the law must always recognize and respect individual freedom and autonomy, there may be times when the personal interests of those engaging in behaviour must take a back seat to a compelling societal interest in denouncing such behaviour.

[23] This concept first appeared in the Supreme Court of Canada decision of R. v. Jobidon, [1991] 2 S.C.R. 714, which dealt with the infliction of bodily harm in the context of a consensual fist fight. The court found that there is a common law limitation to the defence of consent where there is intentional application of force resulting in bodily harm. Unfortunately, this limitation has often been referenced in short-form as "a person cannot consent to bodily harm", which is an over-simplification of the court's ruling.

[24] In R. v. Welch, [1995] O.J. No. 2859, the Ontario Court of Appeal extended the applicability of this principle to cases involving sexual assault cause bodily harm where there was intentional bodily harm inflicted during the course of otherwise consensual sado-masochistic acts. This was followed by the Ontario Court of Appeal decision in R. v. Quashie, [2005] O.J. No. 2694 and the more recent decision of R. v. Zhao [2013] O.J. No. 2010, neither of which involved sadistic acts but did involve sexual acts which resulted in the infliction of bodily harm.

[25] What can be distilled from these various decisions is the following: consent is not vitiated for public policy reasons in all circumstances of sexual assault causing bodily harm, but instead only in those circumstances where bodily harm was intended and caused. Where the accused did not intend to cause bodily harm, consent is still available as a defence, if the bodily harm is inadvertently caused.

[26] As for the statutory grounds, it is clear from the evidence that the only applicable section would be s. 265(3)(b), namely whether or not Ms. Mc-B's consent was vitiated by fraud, the fraud being Mr. J.J.T.'s non-disclosure of his diagnosis for herpes.

[27] The issue of vitiation of consent based on non-disclosure of a sexually transmitted infection ("STI"), specifically HIV, was first addressed by the Supreme Court of Canada in R. v. Cuerrier, [1998] 2 S.C.R. 371 and again, fourteen years later, in R. v. Mabior 2012 SCC 47. Significant advancement in the study and treatment of HIV had occurred during those years.

[28] In R. v. Cuerrier, the Supreme Court of Canada held that the failure to disclose a condition that poses a significant risk of serious bodily harm amounts to fraud that vitiates consent to sex. Writing for the majority, Cory J. explained, at 127:

Without disclosure of HIV status there cannot be a true consent. The consent cannot simply be to have sexual intercourse. Rather it must be consent to have intercourse with a partner who is HIV-positive. True consent cannot be given if there has not been a disclosure by the accused of his HIV-positive status. A consent that is not based upon knowledge of the significant relevant factors is not a valid consent.

[29] This issue was revisited in R. v. Mabior amidst sharp criticism that the law as it existed resulted in undue criminalization of people for non-disclosure of their HIV status even in circumstances where the risk of transmission was negligible.

[30] In R. v. Mabior the Supreme Court of Canada affirmed the validity of the test that had been set out in R. v. Cuerrier, noting at 12:

This Court considered "fraud" under s. 265(3)(c) 14 years ago in Cuerrier. The majority test in Cuerrier may be stated in different ways, but boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused her to refuse sexual relations that exposed her to a significant risk of serious bodily harm).

[31] The court went on to provide clarity as to how trial courts should answer the question of how to define what amounts to a "significant risk of serious bodily harm". One proposal the court was asked to consider was the "absolute disclosure" test, meaning that all HIV-positive people should be required to disclose their status before engaging in any sexual activities in order for there to be valid consent. The court rejected this submission, noting at 67: "… this approach seems to expand fraud vitiating consent in s. 265(3)(c) further than necessary, by defining it as simple dishonesty and effectively eliminating the deprivation element of fraud."

[32] Concluding that the phrase "significant risk of serious bodily harm" should be interpreted as requiring an accused to disclose his or her HIV status if there is a realistic possibility of transmission, the court found that this approach was consistent with the evolving common law approach to the law of vitiation of consent through fraud. The court comments, at 88:

…the common law and statutory history of fraud vitiating consent to sexual relations supports viewing "significant risk of serious bodily harm" as requiring a realistic possibility of transmission of HIV. This history suggests that only serious deceptions with serious consequences are capable of vitiating consent to sexual relations. Interpreting "significant risk of serious bodily harm" in Cuerrier as extending to any risk of transmission would be inconsistent with this [emphasis added].

[33] In other words, R. v. Mabior makes it clear that mere non-disclosure of the presence of an STI (in that case HIV) does not amount to fraud vitiating consent.

[34] The most recent pronouncement from the Supreme Court on the interaction between fraud and consent is that of R. v. Hutchinson 2014 SCC 19, [2014] S.C.J. No. 19. In that case, the accused was charged with sexual assault. He had been in a consensual intimate relationship with his partner, but both had agreed to engage in intercourse only while using condoms. Without telling his partner, the accused poked holes in the condoms resulting in an unwanted pregnancy.

[35] The court concluded that the complainant had in fact consented to the act, namely sexual intercourse with the accused. The fact that she was not aware of the potential consequences of that decision, in that case the risk of pregnancy, did not alter the fact that she did voluntarily agree to engage in sexual intercourse. As noted, at 55, "The 'sexual activity in question' does not include conditions or qualities of the physical act, such as birth control measures or the presence of sexually transmitted diseases."

[36] That left the issue, however, of whether or not that consent had been vitiated by fraud, in this case the deception concerning the state of the condoms. In noting that some deceptions could vitiate consent, the court was careful to set out limitations. Not all fraud will vitiate consent; rather it is only fraud which carries with it the risk of serious harm which will suffice.

[37] The court reiterated that "fraud" for the purposes of consent has two elements: (1) some act of dishonesty, which can include the non-disclosure of important facts; and (2) deprivation or the risk of deprivation in the form of serious bodily harm which flows from the dishonest act. The court went on to say, at 72:

This application of "fraud" under s. 265(3)(c) is consistent with Charter values of equality and autonomy, while recognizing that not every deception that induces consent should be criminalized. To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in Cuerrier and in this case. For example, financial deprivations or mere sadness or stress from being lied to will not be sufficient.

POSITION OF THE PARTIES

[38] Counsel for Mr. J.J.T. submits that the Crown has failed to prove beyond a reasonable doubt that his client infected Ms. Mc-B with herpes. He notes that there was no medical or expert evidence concerning the nature of the illness, how it is transmitted, what viral shedding is, or how long it can incubate. He stresses that there is no clear evidence that his client was suffering from an outbreak at the time that Ms. Mc-B was infected, or even that he ever suffered from an outbreak while they were together. Furthermore, he submits that there is no evidence that the oral herpes that Ms. Mc-B suffered shortly after her relationship with Mr. J.J.T. ended in March of 2015 is in any way connected to Mr. J.J.T., as there is no evidence before this court that Mr. J.J.T. has ever suffered from oral herpes.

[39] He further submits that, even if this court is satisfied beyond a reasonable doubt that Ms. Mc-B's outbreak is a result of Mr. J.J.T.'s actions, his client is nonetheless entitled to an acquittal. Relying on R. v. Quashie and R. v. Zhao, he submits that the appropriate test to be applied is whether or not Mr. J.J.T. intended to cause bodily harm. If he did not, then he may still rely on the defence of consent and this court should find that that consent was not vitiated.

[40] The Crown submits it has in fact proven the essential elements of the case beyond a reasonable doubt. The Crown indicates that the evidence of Ms. Mc-B is sufficient to establish that Mr. J.J.T. had unprotected sex with her while he was experiencing an outbreak which led to Ms. Mc-B contracting genital herpes.

[41] Counsel for the Crown asks this court to find that, in circumstances involving bodily harm caused by the transmission of an STI, the issue of consent is irrelevant provided the Crown can establish beyond a reasonable doubt that (a) the accused knew or suspected he has an STI and (b) failed to disclose to his partner that he has or suspects he has this STI prior to engaging in sexual activity.

APPLICATION OF THE LAW TO THE FACTS

[42] In the view of this court, the Crown has failed to establish beyond a reasonable doubt that Ms. Mc-B contracted the genital herpes virus from Mr. J.J.T.. There are certainly grounds to be suspicious. Ms. Mc-B had never had any outward signs of genital herpes before November of 2013. Once she started experiencing symptoms of an outbreak, Mr. J.J.T. told her that he too had had herpes, although her testimony about whether or not he told her he was experiencing an outbreak at the same time or had experienced an outbreak is unclear.

[43] However, the lack of any medical evidence in this case makes it impossible to conclude beyond a reasonable doubt that Mr. J.J.T. was the source of Ms. Mc-B's herpes. This is particularly true when one considers the issue of the oral herpes outbreak. Ms. Mc-B testified that she believed she could have acquired this virus at the same time as the virus which caused the genital herpes, and that it could have lain dormant for that time (well over twelve months). If that is the case, is it possible that the genital herpes virus might have lain dormant in Ms. Mc-B for months prior to her outbreak? Is it just a coincidence that she developed an outbreak while in a relationship with Mr. J.J.T.? Without the benefit of medical evidence, this court is unable to resolve these issues to the legal certainty required in a criminal case.

[44] In any event, even if the court had been satisfied that Mr. J.J.T. was the source of the herpes acquired by Ms. Mc-B in November of 2013, the court nonetheless would have found that Mr. J.J.T. was entitled to an acquittal.

[45] As it relates to the charge of sexual assault cause bodily harm, the court agrees with the Crown that the cases of R. v. Quashie and R. v. Zhao do not apply to the case at bar. Those cases speak to the court's common law power to vitiate consent where the conduct being consented to intentionally causes bodily harm under circumstances that are sufficiently demeaning or degrading such that personal autonomy must give way to the larger societal interest in denouncing such conduct.

[46] The Crown asks the court to find that, in fact, public policy requires a finding that consent either cannot be given or the defence of consent cannot be raised in cases where the accused has a sexually-transmitted infection and fails to disclose the same. The Crown further asks for a finding that failure to disclose an STI prior to engaging in sexual acts in and of itself is such an egregious act that public policy interests require that the defence of consent be made unavailable.

[47] This view is incongruent with the authorities reviewed above. Consistently, the courts dealing with this issue have recognized the need to balance personal autonomy and dignity with the "need to confine the criminal law to conduct associated with serious wrongs and serious harms": R. v. Mabior, supra, at 89. It should also be noted that, at trial, the Crown in R. v. Cuerrier argued that public policy should vitiate consent in cases involving sexually transmitted diseases. That argument was rejected and, ultimately, the Supreme Court recognized that it was fraud, and not public policy, which could support a finding that consent was vitiated.

[48] In this court's view, the correct approach is the one set out by in R. v. Mabior and R. v. Hutchinson. First, the court must decide whether or not the complainant consented to the sexual act in question. That analysis should not include a consideration of whether she was consenting to the potential risks or consequences of the act, but simply whether she was consenting to the sexual act itself. In this case, it is clear that Ms. Mc-B consented to having unprotected intercourse with Mr. J.J.T..

[49] Once there has been a finding that there was consent to the sexual act in question, the court must then turn to whether or not that consent was vitiated by fraud. In order to find that the consent was vitiated by fraud, the court must find that (1) the accused engaged in some act of dishonesty, which can include omission of important facts and; (2) that serious bodily harm resulted from that act of dishonesty.

[50] Sadly there can be no dispute that this act resulted in serious consequences for Ms. Mc-B, ones that have had a life-altering impact on her. However, even taking the Crown's evidence at its highest, the court is unable to conclude that Mr. J.J.T. committed an act of "serious deception" such as to meet the first branch of this test.

[51] While it is true that he did not disclose the fact that he had herpes, that in and of itself is not sufficient. In R. v. Mabior, held that a person who has the HIV virus is not legally obligated to disclose that status in all circumstances. It is only when there is a realistic possibility that the virus can be transmitted that they are obligated to disclose their status lest they risk having consent vitiated.

[52] There is no compelling reason to treat an individual who carries the herpes virus should be treated more seriously than one who carries the HIV virus. The evidence before this court is that Mr. J.J.T. had no knowledge that he could transmit the disease, given that he had had it for more than a decade and had never, to his knowledge, infected anyone else. In other words, there is no evidence before the court that Mr. J.J.T. had any reason to believe that there was a reasonable possibility of transmission.

[53] Criminal negligence requires a finding that the accused either did something or omitted to do something that he had a duty to do which demonstrated a wanton or reckless disregard for the life or safety of others.

[54] The Crown asks the court to find, relying on the decision in R. v. Boone [2016] O.J. No. 1585 (Ont. C.A.), that Mr. J.J.T. had a duty to disclose his herpes diagnosis to Ms. Mc-B. For reasons previously articulated, the court finds that this duty does not exist in all circumstances. Given the court's finding that there is no evidence that Mr. J.J.T. was aware of a realistic possibility that he could infect his partner, the court cannot conclude that his failure to disclose his condition demonstrates a wanton or reckless disregard for the life or safety of others. As noted by his counsel in oral submissions, Mr. J.J.T. now has this knowledge and will not be able to avail himself of this position in the future.

[55] As for any other legal duty which might exist, the court heard no evidence about whether or not provincial health legislation requires Mr. J.J.T. to disclose his diagnosis.

DECISION

[56] For the above reasons, the court finds Mr. J.J.T. not guilty of the offence of sexual assault cause bodily harm and not guilty of the offence of criminal negligence cause bodily harm.

Released: March 2, 2017

Signed: Justice D.A. Kinsella