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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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

Date: August 2, 2017

Court File No.: 16-001814

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

C.B.

Before: Justice Robert S. Gee

Heard on: April 3, 4, 5, 6, 10, and May 16

Reasons for Judgment Released: August 2, 2017

Counsel:

• W. Dorsey for the Crown
• W. Cunningham for Mr. C.B.

INTRODUCTION

[1] The accused in this matter, C.B., is a carrier of the human immunodeficiency virus (HIV) and herpes simplex virus (HSV). Between December 2014 and April 2016 he entered into intimate relationships with the three complainants in this matter, K.S., C.G. and S.W. It is alleged he did not disclose his HIV status to any of the complainants and did not disclose his HSV status to K.S.

[2] None of the complainants have contracted HIV as a result of their relationship with Mr. C.B.. One complainant, K.S. is now a carrier of HSV and it is alleged she contracted this as a result of her relationship with the accused.

[3] Mr. C.B. now faces a number of charges as a result of his alleged non-disclosure of his HIV and HSV status. At the outset of trial he was facing three counts of aggravated sexual assault, one for each complainant, for engaging in an intimate relationship with them without disclosing his HIV status. He was also facing one count of sexual assault causing bodily harm for infecting K.S. with HSV without disclosing to her he was a carrier of the virus.

[4] Additionally, he faces two counts of failing to comply with a recognizance. Mr. C.B.'s relationship with K.S. was first in time. Following the end of that relationship, K.S. reported Mr. C.B. to the police and after an investigation, the charges relating to K.S. were laid. Mr. C.B. was released on a recognizance with a term requiring him to abstain from any sexual activity, unless he made full disclosure of his HIV and HSV status, or wore legally required protection. It is alleged by engaging in an intimate relationship with both C.G. and S.W. without disclosing his status, Mr. C.B. breached this term of his recognizance.

[5] At the conclusion of the evidence, the Crown requested that the count of aggravated sexual assault against K.S. be dismissed, presumably as a result of frailties in her evidence that were exposed during trial. This was an appropriate concession by the Crown, and that count was dismissed, leaving Mr. C.B. facing five charges.

[6] It should also be noted that even though there were similarities in the evidence of the three complainants, the Crown did not bring an application to have the evidence of any one complainant apply to the counts relating to the other complainants. As such, the evidence of each complainant has been assessed independent from the evidence of the others.

[7] Notwithstanding that this trial took place over the course of several days, only four witnesses in total testified.

[8] The Crown's case consisted entirely of the testimony of the three complainants. The defence called one witness, Dr. Philippe El-Helou, who, on the consent of the Crown proffered expert evidence in relation to the biology, treatment, and risk of transmission of HIV. Mr. C.B., as is his right, did not testify.

[9] To obviate the need to call other evidence, the Public Health Ontario medical records for Mr. C.B. were admitted on consent. These records covered the period from October 2013, when he was diagnosed with HIV, to April 2016, and reflect Mr. C.B.'s HIV viral load throughout that timeframe.

THE HEALTH OF MR. C.B.

[10] Mr. C.B.'s first positive HIV test was on October 24, 2013. In April 2014 he commenced treatment with four antiretroviral medications for HIV. As of April 17, 2014 his serum viral load was 2,074,712 copies per millilitre of blood. By July 15, 2014 his viral load was 949 and by October 15, 2014 it was 60. In tests conducted on January 7, 2015, April 10, 2015 and October 2, 2015 his viral load was undetectable. On two tests, July 6, 2015 and March 16, 2016 his viral load was less than 40, which, for medical purposes is considered undetectable.

[11] Mr. C.B. also suffers from a physical impairment that requires him to walk with a cane. His explanation to the complainants for this was that he had contracted a virus that attacked his spine.

[12] Additionally, according to the complainants, Mr. C.B. could not maintain an erection and was predominately stimulated by anal penetration. K.S. and C.G. testified about infrequent attempts at vaginal or anal intercourse. While S.W. claimed that there were frequent attempts, success was in fact limited.

EVIDENCE OF K.S.

[13] K.S. is 47 years old and has two children, ages 20 and 16. She and Mr. C.B. met in October 2014 through an online dating site called Plenty of Fish. After communicating for approximately one month, they had their first in-person date at a restaurant in Burlington. The following week they went to Niagara Falls together. While they were intimate during the trip, there was no intercourse. Their relationship continued until late December 2014.

[14] K.S. testified that in mid-December 2014 there was one instance of vaginal intercourse in which she claimed that no condom was used. This purported intercourse lasted 40 seconds. Mr. C.B. did not ejaculate. K.S. claimed that several times prior to this intercourse, she asked Mr. C.B. whether he had any sexually transmitted diseases and he stated he did not, that he was "clean."

Near the end of December Mr. C.B. and K.S. separated. In direct-examination, K.S. claimed this break occurred because she discovered that he had naked pictures of women on his phone, and that he was still chatting online with other women. She discovered these pictures when she was going through his phone. During her interview, K.S. told the police that she broke up because of the naked pictures and that she had discovered a number of sex toys Mr. C.B. had. Later in the same statement, she told the police she could not remember why they broke up.

[15] In cross-examination, she stated that she went into Mr. C.B.'s residence on about December 23, 2014 while he was not home, to deliver some belongings. She indicated she had previously been given a key to his residence. While inside, she went through some of his drawers. While doing so, she discovered, and took pictures of, a number of sex toys. K.S. could not recall why she took the pictures, but stated she might have sent them to him. K.S. confronted Mr. C.B. about the sex toys and he agreed to throw them out. However, she was still upset, purportedly about the sex toys, and left his residence.

[16] It was not entirely clear in the evidence, but presumably at the same time, if not very shortly after, K.S. also discovered a notebook with a list of medications in one of Mr. C.B.'s drawers. At the time of the discovery she took a picture of this list. Unlike the pictures of sex toys, she claimed that she took the picture of the medications for "safekeeping". She claimed she did not search for any of these medications online. K.S. acknowledged that had she used Google to search the names of the medications, it would have been apparent they were used for the treatment of HIV and HSV.

[17] In her examination in-chief, K.S. stated she only ever asked Mr. C.B. about whether he had any STD's, and never asked him specifically or directly if he had HIV. However, in cross-examination she admitted that around the time she discovered the sex toys and the list of medications that she confronted him about being bisexual, and whether he had HIV. She went on to state that if he had HIV and was lying she would make his life "a living hell". She testified that it was a coincidence that she made these statements shortly after taking pictures of the list of medications.

[18] By February 2015 K.S. and Mr. C.B. had resumed their relationship. At the time K.S. had been struggling financially and had made a proposal to her creditors. This proposal required her to pay her creditors approximately $24,000.00 over 60 months. Throughout this process Mr. C.B. promised to help K.S. financially.

[19] K.S. also indicated there was another incident of attempted vaginal intercourse sometime in February or March, 2015. During this incident, no condom was worn, there was no ejaculation as Mr. C.B. could not maintain an erection, and the incident as a result was in fact very brief.

[20] Then, in May 2015, she testified there was another sexual encounter where Mr. C.B. performed oral sex on her. It was within a few days of this encounter that she stated she began feeling pain in her genitals. As a result she attended her doctor and was diagnosed with HSV. At this time she stated she also showed her doctor the list of medications she had found at Mr. C.B.'s, and was told they were an HIV cocktail.

[21] Under cross-examination she eventually admitted that she had told her doctor at this time that she suspected her partner may be HIV positive. She said she suspected this as a result of the list of medications she found, even though according to her, until she was told by the doctor what they were for, she had not done anything herself to learn what they were.

[22] K.S. had attended her doctor on June 11, 2015 and received her HSV diagnosis on June 18, 2015. Shortly after receiving the diagnosis she claimed she called Mr. C.B. but the call did not last long as she was too upset to talk. Instead, not long after, over the next day or so, she and Mr. C.B. exchanged a number of text messages. During the course of these texts, Mr. C.B. admitted to being HIV positive. Also during this text exchange, it was acknowledged that Mr. C.B. had been financially assisting K.S.

[23] K.S. had taken screen shots of these text messages and later provided them to the police. The text exchange itself, she deleted from her phone. In her direct examination, K.S. initially claimed she did not have any further communications with Mr. C.B., then modified that to this exchange being pretty much their last communication.

[24] However, in cross-examination a number of further text messages between K.S. and Mr. C.B. were produced. It is clear from these messages that the exchange K.S. referred to above was in fact not their last communication. These messages seemed to indicate K.S. was considering continuing the relationship with Mr. C.B., and as well there continued to be discussions about financial matters between the two.

[25] Ultimately things came to a head in mid-July. On July 16, 2015 K.S. sent an email to Mr. C.B. stating the following:

I'm giving you the opportunity on how to proceed, either we come to a mutually agreed upon settlement that is fair to me and my children, or I'll have no choice but to take a legal route. This will also mean that you will be exposed to your family, all your friends, and co-workers. I'm going to leave this with you for a few days. I'd like an answer by 5:00 p.m. Sunday as I've already made an appointment with a lawyer for Monday.

[26] Then on July 18, 2015 K.S. again went to Mr. C.B.'s residence, again when he was not there. During this visit she found that he had taken a framed picture of the two of them and hidden it behind a couch cushion. Text messages were again exchanged between the two of them the next day. During this exchange K.S. suspected, based on what she saw at his residence that Mr. C.B. was with another woman at the time, and not visiting with his kids as he had told her. As a result, she said Mr. C.B. would be hearing from her lawyer.

[27] In her testimony, K.S. denied that the settlement she referred to in the July 16, 2015 email was in any manner a request for financial compensation from Mr. C.B.. She claimed what she meant was that she wanted Mr. C.B. to be honest about his HIV status.

[28] In giving this explanation I find that K.S. was not being truthful. A mutually agreed upon settlement that is fair to her and her kids, is not a contextually accurate or appropriate way to ask someone about their HIV status. It simply makes no sense given the context of their relationship at the time or the wording she used.

[29] Furthermore, as noted earlier, shortly after she was diagnosed with HSV, she confronted Mr. C.B. and he disclosed his HIV status to her several weeks before. In fact, what did happen was when no financial settlement was forthcoming K.S. reported the matter to the police on July 25, 2015.

[30] It is clear from her testimony in court that K.S. is convinced Mr. C.B. infected her with HSV and exposed her to HIV. It is because of this and perhaps the cavalier way she feels he viewed their relationship that she feels he is generally a despicable person. Her animus toward him during her testimony was palpable. Unfortunately, I find this animus she harbours for him has clouded her judgment and it has negatively affected all aspects of her testimony. Her credibility and the reliability of her evidence has as a result, been seriously compromised. Even the Crown has recognized this and described her evidence as deceptive and completely dishonest at times, pointing to her explanation of the July 16, 2015 email as but one example of this.

[31] A further instance as to how her animus has compromised her judgment is that after other complainants had been identified, the Crown warned K.S. to refrain from speaking to them and to avoid all contact with them. Notwithstanding this she had several discussions with the other two complainants in this matter.

[32] In fact, it was through reviewing Mr. C.B.'s Facebook pages that K.S. discovered he may have been in a relationship with another of the complainants, C.G. K.S. took it upon herself to find and contact C.G. on April 23, 2016. She disclosed to C.G. Mr. C.B.'s HIV and HSV status, but claims to have not tried to convince her to go to the police. C.G. however testified that K.S. did tell her to go to the police, and this is in fact what C.G. did as soon as the phone call with K.S. ended.

[33] Given her level of animus and her willingness to be untruthful and deceptive, it is impossible for me to rely on much of K.S.'s testimony. What I do find is that Mr. C.B. did not disclose his HIV or HSV status to K.S. until she confronted him in June 2015.

[34] Having said that though, I also believe that when she found the list of medications in December 2014, she did search them online and discovered what they were for. I come to this conclusion for three reasons.

[35] First, it is common sense. She is in his house taking pictures of things she finds concerning. She comes across a list of medications and is concerned enough to take a picture of it. She had been aware from their initial meeting that he had a health condition, which he claimed attacked his spine, and which required him to use a cane when walking. Putting the discovery in this context, in this day and age when this type of information is available to everyone around the clock, at their fingertips, an online search of these medications is the first thing anyone would do.

[36] Second, almost immediately after discovering the list she confronted him specifically about whether he was HIV positive, when prior to this she had only asked him, in more generic terms, whether he had any STD's. She went from the generic to the specific in this regard I find because she, by then, knew what the medications were for.

[37] Finally the third reason is that when she did ultimately go to her doctor she advised her doctor she suspected Mr. C.B. may be HIV positive. Again this leads me to believe she had researched online what the medications were for.

EVIDENCE OF C.G.

[38] C.G. is 45 years old and mother of two. She resides in the Township of Tiny, Ontario where she is an insurance broker. Her husband passed away in early 2015 and she met Mr. C.B. through Facebook in May 2015.

[39] They communicated through text and phone calls until they met for the first time at a hotel in Barrie in June 2015. When Mr. C.B. arrived at the hotel C.G. discovered that he walked with a cane. He explained to C.G. that he had contracted a virus which had attacked his spinal cord. Mr. C.B. said that as a result of the virus he was on his death bed, that he had to take medication to keep it at bay, and that a condom should be worn to protect her from the virus.

[40] During the course of their relationship, Mr. C.B. was unable to maintain an erection. For help with this he would use Viagra but even that only had minimal success. Throughout their relationship, there were two occasions where he wore a condom and engaged in vaginal intercourse, and two other occasion of unprotected intercourse, one vaginal and one anal.

[41] C.G. testified that Mr. C.B. never ejaculated during the anal or vaginal intercourse. The one occasion of unprotected anal intercourse was a spur of the moment encounter that lasted for 20 to 30 seconds. The one occasion of unprotected vaginal intercourse lasted for perhaps 30 seconds and ended when C.G. told him to stop as he should be wearing protection. Again on neither of these occasions did Mr. C.B. ejaculate.

[42] Their relationship ended in December 2015 after Mr. C.B. got drunk and acted in a boorish manner at the 13th birthday party of C.G.'s daughter. She felt Mr. C.B. had changed her, and was controlling, so when he woke in the morning after the party she asked him to leave, and told him their relationship was over.

[43] During the relationship she testified Mr. C.B. never disclosed he was HIV positive. He told her about the disease that infected his spinal cord and that it was infectious, but HIV was never mentioned, nor did she ever ask. When the issue came up about infectious conditions their first night in the hotel in Barrie, other than the spinal cord infection, Mr. C.B. stated he was clean. She also testified that had Mr. C.B. disclosed his HIV status to her she would not have consented to intercourse with him.

[44] During the summer of 2015, Mr. C.B. told C.G. that he had been charged by an ex-girlfriend. He stated that it was in relation to HSV and that one could be charged due to cold sores. C.G. was not concerned as she had cold sores for much of her life and was familiar with them.

[45] As noted earlier, after their break up, in April 2016, C.G. was contacted by K.S. This is when she learned Mr. C.B. was HIV positive. Upon learning this she immediately went to the police. She was also advised by the police to not contact other complainants. Notwithstanding this admonishment, she admitted to later speaking to K.S. on more than one occasion. She also advised the police about the third complainant S.W. The police advised C.G. not to contact her but she admitted to doing so in any event. When S.W. told her she was unlikely to report her relationship to the police, C.G. advised K.S. of this. K.S. then drove to S.W.'s clinic where she worked, and visited her personally, even though prior to this visit they were strangers.

[46] The defence suggests C.G.'s evidence ought not to be accepted. According to the defence her testimony contains inconsistencies and improbabilities that ought to lead to its rejection.

[47] The inconsistencies pointed to are the details surrounding the incident of unprotected anal intercourse. She told police it occurred in the kitchen, while in her testimony she testified it happened just after getting out of the shower. She also told police she was half naked when it occurred, but testified she was completely naked during it. These types of inconsistencies, surrounding details such as this, I find would not lead me to reject her allegation that this encounter occurred. At the time of this specific incident, she was unaware that Mr. C.B. was HIV positive and, that over a year later, she would be called on in court to recount the event in great detail. At the time the significance of the event would not have been apparent, and there would be no reason for her to ensure all details of it were imprinted on her memory. As such, her failure to recount them, or her inconsistencies over time in what these details were, do not cause me to reject her testimony.

[48] The defence contends I ought to reject her testimony concerning the incident of unprotected vaginal intercourse, as implausible. She testified that without Viagra, Mr. C.B. was unable to get an erection, but that on this occasion he awoke with a semi-erection without any Viagra assistance, and was able to have vaginal intercourse with her. I do not think this is inherently implausible. Just because a man consistently has had difficulty achieving and maintaining an erection does not make it entirely unlikely that he would never get at least a semi-erect penis without pharmaceutical intervention. What seems more plausible is that if Mr. C.B. occasionally did achieve at least a semi-erection, and was in a position to take advantage of this achievement because he was sleeping at the time with his then girlfriend, then he likely would try to.

[49] The Crown urges me to accept her evidence based at least to some extent on the fact that if she wanted to exaggerate the risks she was exposed to during the relationship she could have easily lied by increasing the number of unprotected sexual encounters between them. The fact that a witness does not allege a worse or more aggravating version does not enhance their credibility. It is an impermissible line of reasoning to find that the absence of embellishment helps a witness's credibility. (see: R. v. L.L., 2014 ONCA 892)

[50] Overall I find that in spite of the discussions she had with K.S. and S.W. and the animus she too felt toward Mr. C.B., that I accept the basic facts of her allegations. She felt deceived and aggrieved by Mr. C.B., a natural and expected reaction I would think in the circumstances. I accept that they had the two sexual encounters where Mr. C.B. did not wear protection, that Mr. C.B. never disclosed his HIV status to her and that had he done so, she would not have consented to the sexual encounters with him. The alleged frailties in her evidence pointed to by the defence do not cause me to alter this finding.

EVIDENCE OF S.W.

[51] S.W. is 50 years old. She is a licenced veterinarian and has practiced for 27 years. She operates a small clinic in Waterdown, Ontario. S.W. is a carrier of HSV and has been since becoming infected in July 2015. Her infection was unrelated to Mr. C.B.

[52] S.W. and Mr. C.B. met through an online dating site called Positive Singles. Positive Singles is a website for people with infectious diseases to meet similar people. In January 2016, S.W. created a profile and indicated she was a carrier of HSV. S.W. believed that she saw Mr. C.B.'s profile shortly after she joined the site. She claimed that she did not contact him because his profile listed him as HIV positive.

[53] On February 14, 2016, Mr. C.B. contacted S.W. through the website. When S.W. saw Mr. C.B.'s profile this time, she claimed there was something familiar about it but at that time it did not list him as HIV positive, it only listed him as HSV positive. Mr. C.B. and S.W. communicated through the website that day and felt they had such a good connection that they exchanged numbers and spoke on the phone that night, at which time they agreed to meet the next day.

[54] On February 15, 2016, Mr. C.B. and S.W. met at Dave and Buster's in Vaughan. S.W. was surprised when she discovered at the end of the date that he used a cane. She did not ask him about it at the time, nor did she ask him about his HIV status. At the end of this date, they made plans to meet on the weekend.

[55] The following weekend, S.W. and Mr. C.B. met at a hotel. Although sexual activity between them took place, no intercourse did. They used a variety of sex toys to stimulate each other and Mr. C.B. did not, during this time, ejaculate.

[56] After this, S.W. and Mr. C.B. continued to see each other approximately twice a week. During these encounters they would regularly attempt intercourse but without much success. She testified that on only two occasions was Mr. C.B. able to penetrate her vaginally, and one time anally, and all encounters were brief and ended with him losing his erection without ejaculating.

[57] Throughout their relationship it seemed to always nag at S.W. that when she initially viewed Mr. C.B.'s profile it indicated he was HIV positive. She stated she asked him about this and he admitted at one time it did, but he gave her an explanation that she admitted in hindsight was far-fetched, that he lied on the profile about being HIV positive to attract HIV positive clients for his life-coach business.

[58] She did not completely believe this explanation so continued to ask him about whether he was HIV positive, which he continued to deny. Eventually in the last week of February, 2016 she insisted they both get tested and share the results. She stated he kept putting it off, coming up with explanations like, snowstorms, for why he did not get it done, and even going so far as to show her a picture of a blood test form for something other than an HIV test, which he blamed on his doctor.

[59] She stated she continued to be suspicious that he may in fact be HIV positive so much so that she took precautions due to her suspicions. She claimed that she ensured that he never ejaculated inside her or that there was never any oral seminal contact. She also testified had she known about his HIV status, she would not only not have had sex with him, she would not have even dated him.

[60] On the night of April 9, 2016 S.W. testified Mr. C.B. admitted to her he was HIV positive and shared with her some of his medical documentation. She left the following morning and this effectively ended their relationship, even though she had been contemplating ending it before this disclosure. They continued to text and exchange messages over the next few weeks but she eventually "blocked him", ending all contact with Mr. C.B.

[61] Initially, S.W. did not consider reporting Mr. C.B. to the police. After S.W. was contacted by C.G. and K.S., she went to the police. Initially, C.G. contacted S.W. and told her that she had pressed charges and wanted S.W. to press charges as well. S.W. told her that she would probably not charge Mr. C.B.. Later that same day K.S. arrived at S.W.'s veterinarian clinic. K.S. wanted S.W. to press charges. S.W. testified that K.S. was unkempt and it appeared as though Mr. C.B. had severely impacted her. After this meeting S.W. decided she would be "one of the three." She claimed that nothing K.S. said impacted what she told the police.

[62] I found S.W. to be an intelligent and articulate witness. She testified in a straightforward, detailed manner without any sense of hesitation or embarrassment. Obviously testifying at this matter was a difficult and potentially embarrassing situation. I found she testified in an even handed manner without the same level of animus displayed by the other complainants. As noted she is obviously intelligent, she appeared to appreciate the gravity and implications of her testimony. I have considered whether her evidence could have been influenced by the discussion she had with the other complainants, whether purposely or unconsciously, and find, given her intelligence and her appreciation for the seriousness of the matter, for that not to be the case. I accept her evidence. I find she and Mr. C.B. engaged in the three acts of unprotected intercourse as she describes at a time prior to him disclosing his HIV status to her. I also find had he disclosed his HIV status, she would not have consented to these three sexual acts.

EVIDENCE OF DR. PHILIPPE EL-HELOU

[63] It was uncontested that Dr. Philippe El-Helou was an expert, qualified to provide evidence with respect to the biology, treatment and risk of transmission of HIV. Dr. El-Helou received his medical degree from the University of Ottawa in 1992, worked as a resident at Sunnybrook Hospital from 1992 to 1996 and did a fellowship and was on staff at the Beth Israel Medical Centre from 1995 to 2001. Since 2001, Dr. El-Helou has been employed at the HIV Clinic at McMaster University and has been the director of the clinic since 2003.

[64] In all these positions, Dr. El-Helou was involved with the treatment of HIV patients. Further, as the director of the HIV Clinic at McMaster, Dr. El-Helou has overseen over 20 different HIV medical trials. He teaches a yearly conference at McMaster University and organizes international speakers on HIV. He also attends a yearly Conference for Retroviruses and Opportunistic Infections, where the most recent HIV research papers are presented.

[65] According to Dr. El-Helou, HIV is transferred through bodily fluids, including blood, vaginal fluids and semen. The possibility of transfer from or infectivity of, an HIV patient is measured by the number of particles of the disease in a millilitre of blood. This is also described as the viral load. Viral loads can range from millions of copies per millilitre of blood to "undetectable", which is defined as less than 40 copies per millilitre. Patients with a higher viral load are more infective. Treatment through antiviral therapy reduces a patient's viral load. The effectiveness of a specific treatment is measured by the reduction in the viral load. An effective treatment will ultimately reduce a viral load to undetectable levels.

[66] He testified that in all his years treating HIV infected patients, he has not seen a transmission occur from a carrier who has an undetectable viral load.

[67] Dr. El-Helou next summarized the results of the HPTN study (Antiretroviral Therapy for the Prevention of HIV-1 Transmission, Myron S. Cohen, M.D. et al. HTPN 052 Study Team M. Engl J Med 2011; 365:493-505, August 11, 2011. DOI: 10.1056/NEJMoa1105243). The full report from this study was released in 2016 and contained the results of 8,000 couple years. A couple year is equal to following one couple for one year. The HPTN study looked at transmissions between two randomly divided groups. The first group contained couples where the positive partner was provided antiretroviral therapy. In the second group, the positive partner received treatment but only after a delay. Within the early therapy group there were some transmissions before the infected partner had an undetectable viral load. However, there were no linked transmissions in either group once the HIV infected partner became and remained undetectable. There were four infections that occurred during therapy failure, which resulted in viral loads in the 100,000's.

[68] As a result of this study, and his experience, Dr. El-Helou opined that someone who is undetectable for six months is not infectious. While there were no reported cases of an infection by an undetectable partner, the extra six months was added as a cautionary device to ensure the viral load in seminal fluid is also undetectable and to guard against the possibility of therapy failure.

[69] Dr. El-Helou also summarized the PARTNER study (Sexual Activity Without Condoms and Risk of HIV Transmission in serodifferent Couples with the HIV Positive Partner is Using Suppressive Antiviral Therapy, Alison J. Roger et al. for the Partner Study Group JAMA 2016; 316 (2) 171-181 doi:10/1001/jama.2016.5148), which specifically looked at the risk of transmission without a condom. While the HPTN study would have included unprotected acts, it did not control for this variable. However, the PARTNER study focused solely on unprotected acts.

[70] The PARTNER study looked at serodiscordant couples (one positive and one negative) at 75 sites in 14 European countries. The study followed both homosexual and heterosexual couples for 1000 couple years, who were engaged and continued to be engaged in intercourse without a condom. During the study, there were zero linked transmissions. This study confirmed and reinforced the HPTN study and Dr. El-Helou's opinion that a patient with an undetectable viral load is not infective.

[71] Dr. El-Helou also summarized an international consensus statement of HIV doctors and organizations (Risk of Sexual Transmission of HIV From a Person Living With HIV Who Has an Undetectable Viral Load – Messaging Primer & Consensus Statement). Based on the HPTN and PARTNER studies, the signatories agreed that the risk of transmission for anal or vaginal intercourse without a condom, where the infected partner has an undetectable viral load was non-existent to negligible. Dr. El-Helou explained that despite the zero reported incidents, that nothing is certain in science. He equated the problem of accurately measuring zero to measuring infinity. While the degree of certainty that the risk of transmission is zero increases with more repetitions, it can never be absolute. Dr. El-Helou explained that the range of negligible to non-existent is a way of saying "zero…if zero could be measured."

[72] Dr. El-Helou was asked a series of hypotheticals and the risk of transmission of HIV associated to each. These hypotheticals of course mirror the factual scenarios in this case. In sum he was asked what the risk of transmission of HIV was if an HIV positive person with an undetectable viral load since January 2015 had unprotected vaginal and/or anal intercourse without ejaculating in October through to November 2015, and then again from February through to April 2016. He described the risk of transmission in these instances as zero, non-significant or as close to zero as can be measured, and advised that there was no documented case of transmission in these circumstances. He stated brevity and lack of ejaculation reduced the risk but that the primary factor was undetectable viral load for six months.

[73] The Crown took no issue with the evidence of Dr. El-Helou, describing him as a well-respected and accomplished leader in his field, and professional and unbiased in his evidence.

THE LAW

[74] The legal duty on an HIV positive person to disclose his or her HIV status to potential intimate partners was established by the Supreme Court in the case of R. v. Mabior, 2012 SCC 47. The non-disclosure by an HIV positive person of their status to their non–infected partner may lead to a finding the consent to the sexual activity by the non-infected person was vitiated, leaving the HIV positive partner exposed to criminal sanctions, including aggravated sexual assault.

[75] Non-disclosure of the HIV positive status will amount to fraud, vitiating the consent of the non-infected partner where the Crown establishes a dishonest act and a deprivation. The dishonest act is the failure to disclose his or her HIV positive status, either through overt act or by omission, and the deprivation is established upon proof the non-infected partner would not have consented had he or she known their partner was HIV positive, and, where the sexual contact poses a significant risk of, or causes actual serious bodily harm. A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV (see: par 104 of Mabior).

[76] In Mabior, the court found that a realistic possibility of transmission of HIV is negated where the accused's viral load was low and condom protection was used. The real issue in this case in relation to the two counts of aggravated sexual assault faced by Mr. C.B. is whether a low viral load and condom use is the only way a realistic possibility of transmission of HIV can be negated. The Crown contends, notwithstanding Mr. C.B.'s undetectable viral load and the evidence of Dr. El-Helou, condom protection was still required. The defence contends based on the same evidence, the undetectable viral load of Mr. C.B. and the evidence of Dr. El-Helou that the Crown has failed to prove there was a realistic possibility of transmission of HIV to either C.G. or S.W. in the circumstances of this case.

[77] In relation to the count of sexual assault cause bodily harm for the allegation that Mr. C.B. infected K.S. with HSV, the same test established in Mabior that of a dishonest act and a deprivation, must be established by the Crown. However the realistic possibility of transmission aspect of the test does not apply; that aspect is specific to cases of HIV. (see: Mabior, par 82) In an allegation of transmission of HSV the Crown must prove causation, that the HSV positive partner, caused the HSV infection in the previously non-infected partner.

[78] As for the two counts of failing to comply with his recognizance, the Crown and defence have agreed the recognizance requires the Crown to prove the same essential elements as the substantive charges of aggravated sexual assault. The recognizance required Mr. C.B. to disclose his HIV status or use legally required protection. This condition simply placed on him the same requirement as on any person who carries HIV—they must disclose or use legally required protection. As such his liability for these counts will rest upon his guilt or innocence on the aggravated sexual assault charges.

ANALYSIS

AGGRAVATED SEXUAL ASSAULT AND FAIL TO COMPLY WITH RECOGNIZANCE

[79] In this case, I have found that in relation to both complainants C.G. and S.W., that the Crown has proven that Mr. C.B. failed to disclose his HIV positive status to them, and that neither would have consented to sexual activity with him had they known he was HIV positive. As such, given his HIV positive status, the Crown has made out a prima facie case against Mr. C.B.. As noted in par. 105 of Mabior, this places a tactical burden on the defence to raise a reasonable doubt. In Mabior the court said an accused could do this by demonstrating he had a low viral load and condom protection was used.

[80] The question becomes: Is condom use the only way to raise a reasonable doubt about the risk of transmission in a person with a low viral load, or, if at the time Mabior was decided in 2012 it was the only way, has the science advanced to the point where it no longer is?

[81] The defence takes the position that the Supreme Court's decision was not intended to establish an absolute and fixed rule that a low viral load and condom use was the only way to raise a reasonable doubt about the possibility of transmission.

[82] The Supreme Court raised this possibility about possible scientific advances that would mean the failure to disclose no longer vitiated consent. It is this statement by the court in par 104 of Mabior that the defence points to:

However the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those in the present case are at play.

[83] The Crown position is, notwithstanding Mr. C.B.'s viral load condom protection was required. The Crown relies on the case of R. v. Felix, 2013 ONCA 415. In that case the court found Mr. Felix was HIV positive, failed to disclose this to his partners, and the complainants would not have consented to sex with him had they known.

[84] On appeal the accused argued that there was no medical or expert evidence as to his viral load, and as such no evidence of the degree of risk posed by the acts he and the complainants engaged in, so the Crown could not prove there was a realistic possibility of transmission. The Court of Appeal disagreed, holding that, on the Mabior standard, his exact viral load was irrelevant given the trial judge's factual findings.

[85] I find this case does not stand for the proposition the Crown contends. The court did not find that in every case where the Crown proves an HIV positive accused fails to disclose his status and the complainant would not have engaged in the sexual act had they known, that without condom protection a conviction is automatic.

[86] All this case did was reiterate the findings in Mabior that once the Crown establishes a prima facie case, a tactical burden falls to the defence. What this case did establish is that the Crown can make out a prima facie case without calling expert evidence. For practical purposes, once the Crown has established a prima facie case, the necessity to call expert evidence will now fall on the defence in order to meet their tactical burden to raise a reasonable doubt.

[87] That is what has happened in this case. The defence called Dr. El-Helou in order to meet its tactical burden and attempt to raise a reasonable doubt by demonstrating that, based on Mr. C.B.'s undetectable viral load for more than six months, even absent condom use, there was no realistic possibility of transmission.

[88] In assessing whether the defence has met that burden and raised a reasonable doubt, I find that they have. I agree with the Crown, Dr. El-Helou, is a well-respected and accomplished leader in his field. He gave his evidence in a professional and unbiased manner. His opinion was derived from both his clinical practice as well as his knowledge of the most current scientific research in the field. The reports he reviewed to reach his conclusion all studied hundreds if not thousands of couples over many years. Additionally his opinions do not seem to make him an outlier or put him on the fringes of his field of study. On the contrary his opinions seem to match the mainstream thinking in the field.

[89] In par 102 of Mabior the Supreme Court declined to make a distinction then between low and undetectable viral loads. At the time the court had concerns about possible spikes or blips in a person's viral load, and that with ever developing technology, more accurate assessments of viral loads may be measured, which could prove that what was once considered an undetectable viral load, through better technology may prove to have not been undetectable after all. As well, further corroborating research would be required to determine if standards below the low viral load standard ought to be considered in the legal context.

[90] The defence says that the corroborating research is now in. The PARTNER study referred to by Dr. El-Helou has been undertaken since Mabior was decided and the Cohen study has now been completed. The Cohen study was referred to in Mabior but at the time was incomplete. As well concerns for spikes and blips are addressed by the assessment of the risk after six months or more of undetectable viral loads. Given these advancements in our treatment and knowledge, the common law ought to adapt as allowed for by the Supreme Court in par 104 of Mabior.

[91] Dr. El-Helou testified that given Mr. C.B.'s viral load was undetectable from January 2015 on, the risk of transmission in this case was as close to zero as can be measured. I accept that evidence. Given that, I find the Crown has failed to prove that Mr. C.B. exposed the complainants to a significant risk of serious bodily harm. In these circumstances, Mr. C.B.'s failure to disclose did not amount to fraud and the two counts of aggravated sexual assault will as a result be dismissed.

[92] As well, given this finding, the Crown has also failed to prove that Mr. C.B. failed to comply with the legal obligation imposed on him by his recognizance and those two charges will be dismissed as well.

SEXUAL ASSAULT CAUSE BODILY HARM

[93] The Crown alleges that Mr. C.B. infected K.S. with HSV. The facts relied on by the Crown are that Mr. C.B. was infected with HSV prior to dating K.S. while K.S. was not before meeting him. K.S. testified that in May 2015 Mr. C.B. performed oral sex on her and within days she was experiencing pain in her genitals and she was shortly thereafter diagnosed with HSV. She also testified she had not been sexually active with anyone other than Mr. C.B. since they started dating in November 2014.

[94] The starting point is to determine whether the Crown has proven that Mr. C.B. caused K.S.'s HSV infection. If the Crown has proven this, the defence concedes that her HSV infection would amount to bodily harm. The issue would then turn to, like in the aggravated sexual assault counts, whether Mr. C.B.'s non-disclosure amounted to fraud that vitiated K.S.'s consent to the sexual activity.

[95] No medical or expert evidence was called by the Crown on the nature of HSV or the science or biology that underlies it. Evidence of, for example, such things as the latency periods, the relationship between different kinds of HSV, i.e. oral versus genital, and when a carrier is infective, i.e. symptomatic versus asymptomatic, is absent.

[96] The issue of causation of HSV was addressed in R. v. J.H., 2012 ONCJ 708. In J.H., the defence brought an application pursuant to s. 276 of the Criminal Code to examine the complainant on her prior sexual conduct. In considering the relevance of such evidence the court discussed the burden and the requirements of proof on the Crown at paragraph 29:

The prosecution's theory of causation is that the applicant is the source of the complainant's bodily harm, her herpes infection. Proof of this allegation requires the Crown to establish the transmission of the virus between the applicant and the complainant, and that it moved from the former to the latter, beyond reasonable doubt. This in turn requires the Crown to eliminate any reasonable possibility that the complainant was already infected when she first had sexual intercourse with the applicant or, put otherwise, that a sexual partner other than the applicant was the contributor of the herpes virus with which the complainant is now infected.

[97] The issue of causation is further complicated as the time between when a viral infection occurs and it manifests, the latency period, is unclear. The issue of latency period was also discussed in J.H.. At paragraph 16 the evidence in that case was that "persons with genital herpes may not develop clinical symptoms for many months or even considerably longer." As a result of this finding, the court found that the relevant timeframe in the context of a s. 276 application and the examination of the complainant's prior sexual history, was the previous three years.

[98] More recently in the case of R. v. J.J.T., 2017 ONCJ 255, an HSV infection case similar to this, the court found that in the absence of some medical evidence, it was impossible to conclude the accused was the source of the complainant's HSV infection.

[99] I find I am in the same position. I am not certain that the statement noted above from the J.H. case about the latency period being many months or longer is correct. I am also not certain that it is incorrect. Without any evidence in this regard I am simply unable to know. The circumstances here are certainly suspicious and troubling. However being troubled and having suspicions is not proof beyond a reasonable doubt, the standard the Crown must adhere to. Any uncertainty in this regard, on an element the Crown is required to prove beyond a reasonable doubt, must inure to the benefit of the accused. As such I find that without some medical evidence to assist in determining that Mr. C.B. is the source of K.S.'s HSV infection, I am left with a reasonable doubt and as such this charge will be dismissed as well.

[100] However, even if I had been satisfied that Mr. C.B. infected K.S. with HSV, I still would have been left with a reasonable doubt that his non-disclosure vitiated her consent. This doubt would have arisen from the factual findings set out earlier. Several months before the act the Crown alleges infected K.S., she had located the list of Mr. C.B.'s medications. One of these medication was for the treatment of HSV and I have found that she researched what these medications were for. They broke up for a short period of time after the discovery of the medications but later resumed their relationship. After resumption of their relationship, sexual activity between them resumed, including the specific act complained of here. Furthermore, even after being diagnosed with HSV, text messages exchanged between them indicated K.S. was still considering resuming or carrying on her relationship with Mr. C.B.. In these circumstances I would have been left with a reasonable doubt that had he disclosed she would not have consented to the sexual activity complained of in this count.

CONCLUSION

[101] For all of the foregoing reasons I find that the Crown has failed to prove any of the charges against Mr. C.B. beyond a reasonable doubt and as a result all charges are hereby dismissed.

[102] This is a case that was fraught not only with many complicated and difficult legal issues but also with heightened emotions and challenging personalities on both sides. I want to commend both counsel who presented this case with professionalism and the utmost respect and class. This level of professionalism was greatly appreciated by the court.

Dated at Brantford, Ontario

This 2nd day of August 2017

The Honourable Justice R.S. Gee