R. v. Thornton, [1993] 2 S.C.R. 445

James Charles Thornton Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Thornton

File No.: 22312.

1993: June 4.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Nuisance ‑‑ Accused convicted of nuisance for donating blood he knew to be HIV‑contaminated to Red Cross ‑‑ Accused having duty of care in giving blood under s. 216 of Criminal Code ‑‑ Duty of care breached by failure to disclose that blood contained HIV antibodies ‑‑ Lives, safety and health of public endangered ‑‑ Conviction upheld.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 216.

APPEAL from a judgment of the Ontario Court of Appeal (1991), 1991 7212 (ON CA), 1 O.R. (3d) 480, 42 O.A.C. 206, 3 C.R. (4th) 381, dismissing the accused's appeal from his conviction by Flanigan Dist. Ct. J. (1989), 8 W.C.B. (2d) 156, on a charge of committing a nuisance. Appeal dismissed.

Lawrence Greenspon and Judie Y. W. Chan, for the appellant.

Michal Fairburn, for the respondent.

//Lamer C.J.//

The judgment of the Court was delivered orally by

Lamer C.J. ‑‑ We are all of the view that this appeal fails. Section 216 imposed upon the appellant a duty of care in giving his blood to the Red Cross. This duty of care was breached by not disclosing that his blood contained HIV antibodies. This common nuisance obviously endangered the life, safety and health of the public.

The appeal is dismissed.

Judgment accordingly.

Solicitors for the appellant: Karam, Greenspon, Ottawa.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.