COURT FILE NO.: CR-10-SA5086
DATE: 20130103
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Meaghan Cunningham and Louise Tansey-Miller, for the Crown
- and -
Steven PAUL Boone
Ian Carter and Meaghan Thomas, for the Accused
Accused
HEARD: November 13, 14 and 15, 2012,
in Ottawa, Ontario
Madam Justice B. R. Warkentin
WARNING
A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING
UNDER S. 486.4 OF THE CRMINAL CODE OF CANADA
Reasons for Judgment
[1] On October 31, 2012, after a three week trial, Mr. Boone was convicted by a jury of 3 counts of attempted murder, 3 counts of aggravated sexual assault, 2 counts of administering a noxious thing and one count of attempting to administer a noxious thing as it pertained to 4 complainants. Mr. Boone was acquitted of two counts of aggravated sexual assault against two other complainants. The charges against Mr. Boone related to the allegation that Mr. Boone engaged in sexual activities with these complainants without disclosing the fact that he was HIV positive and by lying to those who asked him about his HIV status.
[2] The Crown alleged that the Applicant was deliberately trying to infect his sexual partners with HIV.
[3] There were also 4 charges against Mr. Boone regarding a 7th complainant, BLW that were the subject matter of this trial. Those charges are: attempted murder, attempted aggravated sexual assault, attempt to administer a noxious thing and sexual assault. The charges related to the complainant BLW were originally part of the same indictment as the other 6 complainants. On October 2, 2012 I severed the counts relating to BLW on Mr. Boone's application on the basis that Mr. Boone had established that severance was necessary and in the interests of justice. Mr. Boone claimed that he intended to testify regarding the BLW counts but did not wish to testify regarding the counts that related to the other 6 complainants. He claimed that much of the sexual activity alleged by BLW did not happen and that he believed that the activities they did engage in were consensual. In other words, he had a defence to the BLW charges that he did not have with the other complainants.
[4] One of the considerations in the granting of the severance application was the agreement by the Crown and defence that the same judge hearing the trial before the jury of the counts relating to the 6 complainants would be the judge hearing the trial (judge alone) regarding the BLW counts. The purpose of proceeding in this fashion was to limit the need to recall witnesses who testified in the first trial.
[5] In addition to the 4 charges set out above, Mr. Boone was also charged with failure to comply with a probation order, count 5 on the indictment. This count was conceded by Mr. Boone because he was on probation when he was charged with the offences for which he was already found guilty.
[6] A non-publication order under s. 486.4 was made at trial and continues in effect with respect to these Reasons.
[7] At the commencement of trial, Crown and defence counsel filed an agreement regarding the evidence to be relied upon from the first trial and how that evidence would be used in this trial.
[8] Additionally, Crown and defence counsel agreed that the primary issue in this trial was whether or not Mr. Boone had attempted to anally penetrate BLW. If I was left in any doubt about this, then I would have to find Mr. Boone not guilty of the three most significant charges of attempted murder, attempted aggravated sexual assault and attempt to administer a noxious thing.
[9] It was agreed that absent an attempt by Mr. Boone to anally penetrate BLW there would be insufficient evidence to prove those three counts, regardless of what Mr. Boone intended. This would then leave only the count of sexual assault (having already conceded the count of breach of probation).
Review of the Evidence
[10] The witnesses at trial were BLW's mother, BLW and Mr. Boone. BLW, who is developmentally delayed, was 21 years of age in April 2010 when he met Mr. Boone and when the incidents that are the subject of these charges occurred.
[11] BLW's mother spoke about BLW's developmental delay and her interactions with Mr. Boone. She described BLW's developmental delay as a form of mild autism and that BLW functions at a level of a 10 to 12 year old. She indicated that BLW is unable to work because he has a very short attention span, does not take direction well and finds instructions confusing.
[12] BLW has always lived at home with his mother and she knew from the time he was fairly young that he was homosexual. BLW confirmed this to her when he was 16. BLW's mother testified that she celebrated his homosexuality with him while at the same time speaking to him about the need to protect himself from STD's and HIV, ensuring he knew that using a condom was a necessity as was introducing her to his prospective sexual partners. She testified this was critical to her because BLW's father was also homosexual and HIV positive. These issues were openly discussed in their home.
[13] BLW's mother confirmed that she met Mr. Boone on three occasions, all in her home. She indicated the first occasion was a brief introduction; while on the second and third occasion, Mr. Boone stayed the night with BLW in his bedroom. On the second visit, Mr. Boone was invited for dinner and she spoke to him privately about BLW's developmental delay. She indicated that Mr. Boone was polite and charming, that he told her he was 22 years old (he was actually 29), that he enjoyed spending time with BLW and was unconcerned about his developmental delay. She also confirmed she spoke to him about STD's and the importance of using a condom. Mr. Boone did not disclose to her that he was HIV positive.
[14] BLW's mother also testified that she believed that BLW and Mr. Boone were engaging in sexual activity when he stayed over although she did not hear anything from BLW's bedroom nor did she discuss the sexual interaction that was occurring with either BLW or Mr. Boone except to remind them to use condoms.
[15] She learned that Mr. Boone was HIV positive from her former fiancé who had seen the police warning in the newspaper in early May 2010. She then took BLW for HIV testing and to the police. BLW has tested negative for HIV.
[16] BLW testified at trial and his video-taped interview with the police was also admitted at trial. BLW gave somewhat different versions of events regarding his interactions with Mr. Boone in the video-taped statement and at trial. His version of events also differed somewhat from his mother's evidence. It was clear that BLW had some difficulty at trial recalling the sequence of events; in particular how often he had seen Mr. Boone and what activity they engaged in on each meeting.
[17] Copies of the MSN chat logs between Mr. Boone and BLW were made an exhibit at trial and were of some assistance in ascertaining the sequence of events that occurred between Mr. Boone and BLW.
[18] When BLW spoke to the police in May 2009, he described his interactions with Mr. Boone as follows:
a) They met on line and before meeting in person spoke in an MSN chat room. BLW claimed that he felt pressured by Mr. Boone to engage in dirty talk on-line.
b) They got together on three occasions, each one at BLW's home. Mr. Boone stayed the night on each of the three occasions.
c) On their first night together, Mr. Boone tried to kiss BLW and BLW told Mr. Boone that it was too soon, he was not yet ready and would tell him when he was. However, later in the interview, BLW told the police that Mr. Boone then put BLW on his stomach on the bed and began rubbing him all over and kissing his neck, touched his penis and that it was okay with him.
d) On their second night together there was some "making out" and touching each other. They were cuddling and Mr. Boone was kissing BLW's neck and rubbing his body. BLW told the police that he did not want this, he only wanted to cuddle.
e) On that second night BLW claimed to have told Mr. Boone that he didn't want to have sex. BLW described Mr. Boone as ignoring his request and continuing to kiss and rub his body and that in spite of having told Mr. Boone that he did not want to have sex, Mr. Boone attempted to have sex with him.
f) BLW claimed that Mr. Boone wore a condom on the first and second nights that he stayed over, but did not wear a condom on the third night. He claimed that after falling asleep, he woke up in the night to find Mr. Boone on top of him and attempting to anally penetrate him. BLW told the police he started squirming and squealing and that he managed to push Mr. Boone off of him.
g) BLW told the police that on the third visit Mr. Boone was forcing him to make out by having BLW lie on his back. He claimed that Mr. Boone held his hands down so he could not move. Mr. Boone then began rubbing him and sucking BLW's penis. After this, BLW then penetrated Mr. Boone anally and used a condom.
h) BLW also told the police that he had told Mr. Boone that his private parts were off limits and that he did not like to be touched there.
[19] At trial, BLW's evidence differed from his statement to police due in large part because many of the conversations between Mr. Boone and BLW contained in the MSN chat logs contradicted what BLW had told the police. When BLW was provided an opportunity to review the chat log conversations at trial, he adopted the evidence contained in the chat logs as being the accurate evidence and the statement he had given to the police as being inaccurate where there were contradictions. Additionally, BLW's evidence on examination in chief was at times very different than his evidence on cross-examination.
[20] The MSN chat logs provided some evidence about the timing and nature of the interactions that occurred between BLW and Mr. Boone. Most significantly, the chat logs revealed that it was in fact BLW who was the first to engage in "dirty talk" on-line with Mr. Boone and BLW continued to engage in this type of chatting throughout their on-line interactions.
[21] The on-line discussions demonstrated that:
a) Before they first met in person, BLW described in detail the interaction he was hoping to have with Mr. Boone including being kissed, masturbated and how he wanted Mr. Boone to handle him. BLW also described the types of sexual interactions he liked. In the chat logs, it was clearly BLW who was initiating the discussion of the type of sexual interaction they should engage in with Mr. Boone responding to those suggestions.
b) Their first meeting lasted only a period of a few hours. Mr. Boone did not stay overnight but they did engage in some sexual interaction including kissing and Mr. Boone masturbating BLW. In the chat logs, BLW told Mr. Boone he was shy the first time they met but that he enjoyed the sexual interaction they had, including the masturbation. BLW asked Mr. Boone if at their next meeting Mr. Boone would perform oral sex on him.
c) Significant parts of the chat logs indicated that BLW was reaching out to Mr. Boone and waiting for Mr. Boone to confirm that he would be visiting BLW again. There was nothing in the chat logs to suggest that BLW was uncomfortable with any of the interaction that occurred between BLW and Mr. Boone and there was no discussion of any anal penetration having occurred, or of any attempted anal penetration having occurred.
d) Mr. Boone questioned BLW's interest in sex in the chat logs. It appeared that Mr. Boone desired more sexual interaction than BLW was offering.
[22] At trial, BLW confirmed that it was he who asked Mr. Boone to engage in dirty talk on-line and that it was BLW who was doing most of the dirty talking and that the statement he had given to the police in this regard was incorrect. He then qualified that statement claiming that the pressure by Mr. Boone to engage in sexual interactions and talk dirty occurred when they met in person.
[23] BLW agreed that it was he who described the type of sexual interaction he was looking for to Mr. Boone in their on-line chats. He agreed he told Mr. Boone he wanted to start with kissing and then have Mr. Boone wrap his legs around him. BLW also described in some detail how he wanted to be touched by Mr. Boone. BLW confirmed that the type of sexual interaction he and Mr. Boone engaged in did include exactly the type of kissing and touching that he had asked Mr. Boone to do in their on-line chats and that he was comfortable with it.
[24] At trial BLW testified that he was mistaken when he told the police that Mr. Boone had stayed the night on their first encounter when the chat log indicated that the encounter had only lasted a few hours. BLW claimed it was Mr. Boone's dirty talking in person on that first night together that caused him to be uncomfortable. On cross examination however, BLW said that while he was uncomfortable with Mr. Boone's dirty talking on their first encounter, he was comfortable with the sexual interactions they engaged in, including the kissing, the masturbation and other sexual touching.
[25] When describing their second encounter, BLW testified that he did not want to engage in sexual interactions with Mr. Boone immediately, preferring instead to relax and watch movies. He said that when Mr. Boone began kissing him he did not tell Mr. Boone to stop and he was comfortable with the kissing and making out that took place.
[26] From his evidence at trial, it was not clear if the attempted anal intercourse occurred on the second visit or the third, or on both. BLW testified that he had fallen asleep only to wake when Mr. Boone was attempting to anally penetrate him. BLW surmised that Mr. Boone was not using a condom, alleging he knew this because he felt lubrication on his buttocks, concluding that Mr. Boone was therefore not wearing a condom. BLW also claimed that when he realized what was happening, he started squealing and squirming and was able to push Mr. Boone away, after which Mr. Boone proceeded to masturbate on the bed. BLW claimed to find this behaviour revolting and wondered how he had allowed "this disgusting pig into his bed". He said Mr. Boone then went to sleep but he was unable to sleep and the next morning BLW was happy to see Mr. Boone leave.
[27] In their third meeting, BLW testified that he and Mr. Boone started making as soon as they got into BLW's bedroom. At trial, BLW claimed he was just kissing Mr. Boone back in order to make him happy and that he felt he was being forced to make out with Mr. Boone. It was on this third visit that BLW engaged in anal intercourse with Mr. Boone as the penetrating partner. This interaction was consensual.
[28] Mr. Boone then testified. His evidence, start to finish was inconsistent, improbable and almost entirely unbelievable. Mr. Boone appeared to be answering questions in whatever fashion he believed would make him look like a victim and as someone who was misunderstood. At the commencement of his cross examination, Mr. Boone informed the court that he had not been particularly careful in giving his evidence in chief.
[29] Mr. Boone's video statement to police was also introduced. Many of the things he told the police were different than the evidence contained in the chat logs and from the witnesses in the first trial.
[30] Examples of the inconsistencies in Mr. Boone's evidence are as follows:
a) Mr. Boone claimed to be shy; however, the evidence of the chat logs introduced in both trials and the evidence of the 6 complainants in the first trial demonstrated that Mr. Boone was not shy and he actively engaged in sexual interactions with strangers.
b) Mr. Boone told the police in his interview upon arrest that his viral load was undetectable when the chat log and medical evidence demonstrated that Mr. Boone knew both what his viral load was and that it was in fact high.
c) Mr. Boone claimed he did not know about BLW's developmental delay notwithstanding that BLW's mother testified that she and Mr. Boone had a discussion about BLW's developmental delay and Mr. Boone had engaged in discussions with a friend who knew BLW prior to meeting BLW in which they joked about BLW's personality.
d) Mr. Boone claimed that the evidence from the chat logs was only evidence of fantasy talk. He stated that what he said on-line did not correspond to what he did when in the company of his sexual partners. In particular, he claimed that his descriptions about his attempts to infect others with HIV were purely fantasy talk, and he never intended to infect others with HIV. This evidence was entirely inconsistent with the chat logs where Mr. Boone was bragging to others about his sexual liaisons including those with three of the complainants from the first trial (D.S., B.C. and M.B.). The MSN conversations by Mr. Boone described how he had lied to those individuals about his HIV status and what he was doing in order to succeed in infecting them. His on-line discussions corresponded with the evidence of the sexual activity that the three complainants from the first trial described.
e) At trial, Mr. Boone claimed he was not sure if his sexual partners knew he was HIV positive. He suggested that his on-line status showed that he was HIV positive and he believed that his partners would have known about his HIV positive status from reading his on line profile. He also indicated he could not recall if he had actually told them he was HIV negative. This evidence was contradicted by the MSN chat logs and text messages where he bragged about lying to his sexual partners in order to convince them to have sex without a condom and where he admitted to some of his former partners that he had lied to them about his HIV status.
[31] At trial, Mr. Boone alleged that when he told prospective sexual partners that he was clean it had nothing to do with HIV, but only meant that he had no STD's (as opposed to HIV which is a sexually transmitted infection or STI).
[32] When confronted with the evidence from the chat logs and text messages in which he admitted he had lied to some of his partners, Mr. Boone then claimed that he failed to disclose his HIV positive status to his sexual partners because he was in a dark place after having discovered, in October 2009 that he was HIV positive. He suggested he was confused and afraid of rejection by potential partners if he told them he was HIV positive and that he had no intention to harm anyone.
[33] Mr. Boone was unable to explain why, for a period of approximately 2 years before he discovered he was HIV positive, he engaged in explicit on-line discussions on web sites for those who desired to become HIV positive. The evidence introduced at trial demonstrated that Mr. Boone actively sought partners who were HIV positive, who had high viral loads and who would engage in unprotected anal sex with him in order to infect him with HIV.
Analysis
[34] In assessing the evidence in this case, I have reviewed the legal principles in the Supreme Court of Canada’s decision of R. v. W.(D.)[^1] which sets out the test for determining credibility at paragraph 28 as follows:
“First, if you believe the evidence of the accused, you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
[35] Because Mr. Boone testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W. (D.) apply.
[36] Since I have rejected the majority of the testimony and evidence provided by Mr. Boone, the resolution of this case depends on the credibility of the complainant BLW. It must be acknowledged that mere disbelief of the accused’s evidence does not satisfy the burden of persuasion on the Crown. The Court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.
[37] In considering the evidence, I am entitled to believe all, some, or none of each witness's evidence. Further, in assessing the evidence of Mr. Boone, I must consider it in the context of all of the other evidence. In the context of a case such as this where there were no witnesses to the alleged offences, W.D. prohibits me from concluding that the Crown has met it burden simply because I reject the evidence of Mr. Boone. In considering the evidence in this case, I must remind myself that this is not a credibility contest. It is not enough if I prefer the evidence presented by the Crown. It is not enough if Mr. Boone is probably guilty. I do, however, have a duty to assess the evidence of Mr. Boone in light of the whole of the evidence, including the evidence of BLW and, in so doing, compare the evidence of each of them. I must be satisfied beyond a reasonable doubt on all of the evidence that Mr. Boone committed the offences before I find him guilty of the charges. As I am faced with contradictory versions of what happened in this case, I would also add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.
[38] I turn first to the credibility of Mr. Boone. I have already indicated that Mr. Boone's evidence lacked credibility in its entirety. Ms. Cunningham conducted a thorough cross-examination of Mr. Boone and it was apparent that Mr. Boone was prepared to say whatever he thought at the time would put him in the best light. He tried to portray himself as vulnerable, shy and afraid of the effects of having been diagnosed with HIV as it related to intimate relationships. Mr. Boone attempted to portray himself as someone who was seeking a loving, long-term committed relationship.
[39] Mr. Boone's attempts to portray himself in this fashion were completely at odds with the evidence of the complainants and other witnesses in the first trial and were diametrically opposed to the manner in which Mr. Boone depicted himself in his on-line interactions. When he was confronted by the evidence of the other complainants and his own on-line chat room communications, Mr. Boone claimed that everything that happened on-line was pure fantasy talk and not reality.
[40] Mr. Boone was unable to explain the clear contradictions in his evidence at trial when he claimed that his sexual partners should have known of his HIV status by virtue of his on-line profile or alternatively that he never lied to them about his status. These statements were clearly untrue. BLW and the complainants in the first trial all testified that Mr. Boone never disclosed his HIV positive status, even when asked and he admitted to lying to them in text messages sent to certain of the complainants when he was confronted with his lies.
[41] In his on-line chats and text messages, Mr. Boone bragged about his ability to manipulate young men into having unprotected sex with him and bragged about his ability to infect others with HIV by lying to them about his HIV positive status.
[42] I find that the evidence from the MSN chat rooms, the text messages and the evidence of the complainants and witnesses in the first trial depicts the true intent of Mr. Boone in his sexual encounters, that of desiring to infect with HIV those with whom he had sexual interactions.
[43] I therefore find that Mr. Boone intended to infect others with HIV including BLW. At the same time that Mr. Boone and BLW were chatting on-line and engaged in their short relationship, Mr. Boone was chatting on-line to another person where he was described how he was going to "breed" a 21 year old. I accept the Crown's position that the 21 year old referred to was BLW and that by using the term "breed" Mr. Boone was expressing his intention to infect BLW with HIV.
[44] After considering all the chat log evidence that was admitted from the first trial, the evidence of the complainants and other witnesses as admitted from the first trial, I find that Mr. Boone did have the intent to infect others with HIV and that he actively sought out individuals with whom he could engage in unprotected anal intercourse in order to achieve that purpose. I also find that Mr. Boone clearly understood the risks of having unprotected anal sex while being HIV positive and knew that he had a high viral load.
[45] Notwithstanding these findings, in order for me to find Mr. Boone guilty of the charges as they relate to BLW, I must find that Mr. Boone attempted to anally penetrate BLW and that Mr. Boone persisted in sexual interactions with BLW without BLW's consent, while knowing that BLW was not consenting or had withdrawn his consent.
[46] The evidence from the chat logs and from the other witnesses at the first trial depicts Mr. Boone as someone who is manipulative and who finds it quite easy to find willing sexual partners. There was no evidence before the court in any of the chat logs or from any of the witnesses, except BLW, that showed Mr. Boone was interested in or had engaged in sexual interactions with others who were unwilling partners. There was no evidence that Mr. Boone ever forced himself on anyone.
[47] Mr. Boone denied that he had attempted to anally penetrate BLW and also denied that any of their sexual interactions were non-consensual. The MSN chat logs support his claims in this regard. Mr. Boone expressed some frustration on-line with BLW's apparent disinterest in sex. The evidence was that Mr. Boone was not interested in a relationship with someone who did not want a sexual relationship.
[48] When viewing the evidence of BLW, crown counsel suggested that I should consider his evidence in the same fashion as evidence of child witnesses.
[49] I have considered the comments of the Supreme Court of Canada as to the special considerations that should apply when considering the credibility of a child witness. Although the credibility of every witness that testifies must be carefully assessed, the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of children or as in this case, of those who are developmentally delayed as with BLW's evidence. I accept that the reasoning of Justice McLaughlin (as she then was) in the Supreme Court of Canada case of R. v. W.(R.) [^2] should apply in this case regarding the evidence of BLW. Justice McLaughlin stated:
“Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection .... the presence of inconsistencies, particularly as to peripheral matters, such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.”
[50] The fact that BLW was not able to recount precise details and communicate the when and where of each incident with exactitude, does not mean that he has misconceived what he alleges happened to him. His disability might explain confusion in the details between different incidents and an inability to remember one incident from another. This approach to his evidence does not mean, however, that his evidence is not subject to the same standard of proof as the evidence of other witnesses.
[51] Even by giving BLW the same consideration as that of a child witness, it does not resolve the contradictions in his evidence on significant issues. I do not believe that BLW intended to mislead the police or this court, however, his evidence was on the whole inconsistent on significant points regarding the sexual interactions that occurred. The evidence of the chat room discussions that occurred between Mr. Boone and BLW contradicted BLW's evidence regarding who was engaging in the dirty talk on-line. I do not draw any conclusions about the lack of evidence in the chat room discussions about the sexual interactions BLW testified that he objected to, particularly his allegation of attempted anal penetration and his distaste at some of Mr. Boone's other alleged conduct. There may be many reasons a person decides to continue a relationship without acknowledging the other partner's conduct, including egregious sexual assaultive behaviour and it would be a mistake to make findings on that basis.
[52] However, I do find that the evidence of BLW was confusing and changed each time he provided evidence about the events that occurred. BLW's evidence at trial was that all of the sexual interaction that occurred between himself and Mr. Boone was consensual with the exception of the alleged anal penetration. I cannot disregard the evidence.
[53] Notwithstanding that I found that Mr. Boone intended to attempt to infect BLW with HIV, I am not satisfied that the very high onus on the Crown to prove that there was attempted anal penetration beyond a reasonable doubt has been met.
[54] I therefore find Mr. Boone not guilty of the charges of counts 1 through 4 of the indictment.
[55] A finding of guilty shall be entered regarding the count of breach of probation.
Madam Justice B. R. Warkentin
Released: January 3, 2013
COURT FILE NO.: CR-10-SA5086
DATE: 20130103
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and –
STEVEN PAUL BOONE
Applicant
REASONS ON APPLICATION
Warkentin J.
Released: January 3, 2013
[^1]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742
[^2]: R. v W. (R.), (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 at pp 143-144