ONTARIO SUPERIOR COURT OF JUSTICE

Date: 2012-02-21

Between:
HER MAJESTY THE QUEEN – and – GREGORY THOMAS

Counsel:
Helen How, for the Crown
James Miglin, for Gregory Thomas

Heard: February 8, 2012

Reasons for Sentence

MacDonnell, J.

[ 1 ] On November 21, 2011 Gregory Thomas appeared before this court for trial on an indictment charging that between the 7 th day of March, 2006 and the 9 th day of June, 2007, he committed an aggravated sexual assault on M.C. by endangering her life, contrary to s. 273 of the Criminal Code . On December 22, 2011, I found Mr. Thomas not guilty of the full offence of aggravated sexual assault but guilty instead of the included offence of attempted aggravated sexual assault. He is before the court today for sentencing.

I. The Offence

[ 2 ] The facts underlying the verdict can be briefly summarized. Over the course of a five-year period beginning in 2002, Mr. Thomas was engaged in an intimate sexual relationship with M.C. In March 2006, as part of a physical examination in support of his immigration application, Mr. Thomas was tested for the presence of HIV. The test was positive. Mr. Thomas was notified of the result, as was the Toronto Public Health Department. On April 5, 2006, a Toronto Public Health nurse visited Mr. Thomas in his home and counseled him with respect to the nature of HIV, the necessity of advising any future sexual partners of his infection, and the need to use condoms when engaging in any penetrative sexual activity. The nurse also asked him to disclose all of his sexual contacts for the previous 10 years and he agreed to do so.

[ 3 ] Notwithstanding that agreement, Mr. Thomas never provided the Public Health nurse with any information that would enable her to locate M.C. Worse, he not only never himself revealed to M.C. that he had tested positive, he continued to engage in unprotected sexual intercourse with her for some 14 months.

[ 4 ] In May 2007, Mr. Thomas finally revealed M.C.’s name to the doctor who was treating him for HIV. The doctor passed the information along to the Public Health nurse, who was then able to track down M.C. and arrange for her to be tested. Unfortunately, not only was her test positive, she had by that point developed full blown AIDS.

[ 5 ] M.C. would not have consented to unprotected sexual intercourse with Mr. Thomas had she known that he was HIV positive. By hiding that fact from her, Mr. Thomas obtained M.C.’s agreement to engage in intercourse by fraud within the meaning of s. 265(3) (c) of the Criminal Code . Accordingly the intercourse was without her consent and Mr. Thomas’s conduct constituted an assault. There is no doubt that Mr. Thomas was the source of M.C.’s HIV infection, but the Crown acknowledged that it cannot be determined whether she became infected before or after he learned that he was HIV positive. Thus, the Crown conceded that Mr. Thomas could not be found guilty of the full offence of aggravated sexual assault. In the result, he was found guilty of an attempt to commit aggravated sexual assault: see R. v. Williams , 2003 SCC 41 .

II. The Offender

[ 6 ] Mr. Thomas is now 50 years of age. He was born and raised in Grenada, and came to Canada in 1990. In 1992 he began a romantic relationship with Singa Duffy. Within months, he and Ms. Duffy were living together. Apart from a year-long separation in 2004 and 2005, they have continued to live together. They were legally married on February 28, 2006. Ms. Duffy was unaware, while she was living with Mr. Thomas, that he was carrying on an intimate affair with M.C.

[ 7 ] Mr. Thomas’s relationship with M.C. produced a daughter, who is now 8 years of age. He supports her, he has access to her every second weekend and he has a close bond with her.

[ 8 ] A number of letters have been filed attesting to the high regard that Mr. Thomas’s friends have for him and to the many kindnesses he has extended to others. He has no prior criminal record. He has been on bail for 4½ years without incident.

III. The Impact on the Victim

[ 9 ] M.C. provided a Victim Impact statement to the court. It comes as no surprise that the discovery that she is infected with HIV has been devastating for her. It is important to bear in mind, however, that although there is no doubt that Mr. Thomas was the source of M.C.’s infection, he may have infected her before he became aware of his HIV status.

IV. The Positions of the Parties

[ 10 ] On behalf of the Crown, Ms. How submits that the appropriate sentence is one of imprisonment for three to five years. On behalf of Mr. Thomas, Mr. Miglin submits that the court should consider a conditional sentence, but that if a term of institutional custody must be imposed, it should be in the range of 18 months.

V. Discussion

[ 11 ] In determining a fit and appropriate sentence in this case, Mr. Thomas’s unblemished background is necessarily an important consideration. He has no prior involvement with the criminal justice system, he is well thought of in his community, and apart from his involvement in the offence before the court he has been of good character.

[ 12 ] However, there are also a number of circumstances that significantly aggravate what is an inherently serious offence. First, while Mr. Thomas may have infected M.C. before he became aware of his infection, he repeatedly had unprotected intercourse with her after he became aware, not knowing, and in my view not caring, whether or not she too was infected. That is, on every occasion on which he had intercourse with her in the 14-month period after he learned of his infection and before she was located by the Public Health nurse, he was aware that he might be infecting her with an incurable and potentially deadly virus. This callous course of conduct was a shocking breach of trust. Further, even on Mr. Thomas’s version of events – which I have largely rejected – his conduct was appalling. At no point did he do anything to bring to M.C.’s attention the danger that she might be in or the need for her to seek the kind of medical attention that he was receiving. By the time she learned that she was infected, she had developed AIDS. At that point, bewildered, she spoke to him about her diagnosis. He denied knowing anything about it.

[ 13 ] In support of their conflicting positions with respect to sentence, counsel have referred me to a number of decisions in cases involving failures to disclose HIV infections. The two that I find to be of the greatest assistance are two relatively recent decisions of the Ontario Court of Appeal, R. v. McGregor , 2008 ONCA 831 and R. v. Iamkhong , 2009 ONCA 478 .

[ 14 ] In McGregor , the offender was diagnosed with HIV when he was 19 years of age. He received medical treatment for the infection and he was advised of his obligation to inform prospective sexual partners of his status and of the need to always use condoms when engaging in sexual intercourse. Some years later, he began a relationship with the complainant. He did not tell her of his infection, and while he was usually careful to employ a condom during sexual intercourse there were two instances when he failed to do so. By happenstance, the complainant found out about his HIV status. Fortunately, she had not been infected. The offender had no prior criminal record. He was found guilty after a trial. The trial judge imposed a conditional sentence of 12 months. In the opinion of the Court of Appeal, a conditional sentence was demonstrably unfit and a custodial term of 18 months ought to have been imposed. After allowing a credit of 6 months for the portion of the conditional sentence that had already been served, the sentence was varied to one of 12 months imprisonment.

[ 15 ] In Iamkhong , the offender regularly had unprotected sexual intercourse with her husband throughout the course of their 7 to 8 year relationship knowing, but not disclosing, that before meeting him she had tested positive for HIV. On occasion, when they had discussions about sexually transmitted diseases, she told him that she did not have HIV. Only after she developed AIDS did she reveal the truth. Her husband was then tested and learned that he too was infected with HIV. After a trial, the offender was convicted of criminal negligence causing bodily harm and aggravated assault. The trial judge allowed a credit of 12 months for the offender’s strict pre-trial bail conditions and imposed a sentence of two years imprisonment. The Court of Appeal affirmed the fitness of the sentence but reduced it by one day in order to preserve the offender’s right, under the Immigration and Refugee Protection Act , to appeal against her deportation order.

[ 16 ] Although neither of those cases is on all fours with the case at bar, there are similarities that make them of assistance in identifying the range within which the sentence for Mr. Thomas should fall. In McGregor , the effective sentence was a term of imprisonment of 18 months. However, unlike the offender in McGregor , who had unprotected intercourse with the complainant only twice over the course of an 18-month sexual relationship, Mr. Thomas repeatedly engaged in unprotected intercourse with M.C. after he learned that he was infected. Further, while both he and the offender in McGregor failed to disclose their infections, Mr. Thomas failed to do so notwithstanding that he was himself undergoing treatment for the infection. In my view, the moral blameworthiness of Mr. Thomas’s behaviour is greater than that that of the offender in McGregor .

[ 17 ] In Iamkhong , the effective sentence was three years imprisonment. However, the offence of which the offender was convicted in that case was criminal negligence causing bodily harm, whereas Mr. Thomas has been found guilty of attempted aggravated sexual assault. In Iamkhong , it was established that the offender infected the complainant at a time when she knew of her HIV status, whereas in this case sentencing must proceed on the basis that Mr. Thomas infected M.C. before he knew that he was HIV positive. In addition, while Mr. Thomas’s non-disclosure was fundamentally dishonest, the offender in Iamkhong repeatedly and positively lied about the fact that she had tested negative for HIV. In the circumstances, I am of the view that a sentence somewhat below the sentence imposed in Iamkhong is called for in the case at bar.

VI. Disposition

[ 18 ] A proper balancing of the principles of sentencing requires a sentence for Mr. Thomas that emphasizes deterrence and denunciation. To achieve those objectives a term of imprisonment in a custodial facility is required. Giving the matter my best consideration, I am of the view that the appropriate sentence would two years incarceration.

[ 19 ] Like the offender in Iamkhong , the verdict in this case renders Mr. Thomas subject to deportation. Pursuant to the provision of the Immigration and Refugee Protection Act , he will not have a right of appeal against deportation if his sentence exceeds two years less one day. In the circumstances, I will make the same order as was made in Iamkhong and reduce the sentence of two years to two years less one day .

MacDonnell, J.

Released: February 21, 2012