COURT FILE NO.: 4-180/12

DATE: 20140314

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

STEVE ALPHONSO RALPH

Defendant

Patricia Garcia, for the Crown

Stephen Proudlove, for the Defendant

HEARD: February 3-5, 7, 10, 12-14, 2014

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

SPIES J.

Introduction

[1] The Defendant, Steve Ralph, has been charged with four counts of aggravated sexual assault pursuant to section 273 of the Criminal Code, each relating to a different complainant. He pleaded guilty to the charges with respect to two of the complainants; Count # 5: K.C. and Count # 6: R.W. With respect to the other two complainants; Complainant A and Complainant B, Mr. Ralph pleaded not guilty. He is also charged with the forcible confinement and assault of Complainant A. Mr. Ralph pleaded not guilty to these charges but, in his closing submissions, Mr. Proudlove fairly conceded that given the evidence of Mr. Ralph, he did not have a defence to those charges.

[2] On March 7, 2014, with the consent of counsel and Mr. Ralph, I advised Mr. Ralph that I had decided to find him guilty of aggravated sexual assault of Complainant A and Complainant B and the charges of assault and forcible confinement of Complainant A and that my written reasons would be provided to counsel. These are those reasons.

The Issues

[3] Both Complainant A and Complainant B were in intimate long term relationships with Mr. Ralph. The Crown alleges that Mr. Ralph did not advise either of them that he was HIV positive before he had sexual intercourse with them; both with and without a condom, and that they each contracted the HIV virus from him. The Defence concedes that Mr. Ralph was diagnosed as HIV positive in May 2003 and that both Complainant A and Complainant B are HIV positive but it is not admitted that they were infected by Mr. Ralph. In closing submissions Mr. Proudlove also conceded there was no issue that Mr. Ralph was provided with information as to how to proceed with current and future sexual partners and told of his obligation to advise them of his HIV status.

[4] It was agreed that the issue of “causation;” namely whether or not Mr. Ralph infected either or both of the complainants, is only relevant to sentencing, in the event Mr. Ralph was convicted of either of these charges. Both counsel were in agreement that it would be preferable not to have to bring the complainants back to court to give the relevant evidence at a sentencing hearing. Accordingly, I heard the evidence relevant to the causation issue as a separate segment of the evidence of each complainant and as I advised counsel, I would not consider this evidence in determining whether or not the charges against Mr. Ralph with respect to either complainant had been proven.

[5] Mr. Proudlove also fairly conceded that the evidence of Mr. Ralph amounted to an admission of an assault on Complainant A even though he alleges that she hit him first. Mr. Proudlove conceded that this did not raise the issue of a consensual fight. He also admitted that Mr. Ralph’s behaviour prevented her from leaving. On that basis he said he was not in a position to argue that there was a defence to Counts # 2 and 3.

[6] It is the position of Mr. Ralph that he informed both Complainant A and Complainant B that he was HIV positive before he had sexual intercourse with them. In the alternative, the Defence takes the position that the Crown has not proven beyond a reasonable doubt that the complainants would not have engaged in unprotected sex, i.e. sexual intercourse without a condom, with Mr. Ralph had they known that he was HIV positive. There are, therefore, two main issues:

(a) Has the Crown proven beyond a reasonable doubt that Mr. Ralph did not inform the complainants that he was HIV positive before he had sex with them?

(b) Has the Crown proven beyond a reasonable doubt that the complainants would not have had unprotected sex with Mr. Ralph had they been told that he was HIV positive?

[7] There was no similar fact application and so the case against Mr. Ralph for each of the two remaining complainants must be decided independently from the other and independent of his two guilty pleas. Mr. Proudlove did agree, however, that the facts which Mr. Ralph admitted in support of his two guilty pleas could be relied upon as fact in considering the remaining charges.

[8] Although Mr. Proudlove did not contest the charges of assault and forcible confinement of Complainant A I must still consider the evidence as the Crown has taken the position that the evidence of Complainant A includes aggravating features not present in the version of events testified to by Mr. Ralph. Ms. Garcia wishes to rely upon these aggravating factors, if proven, on sentencing.

Admitted Facts, the Chronology[^1]and Preliminary Findings of Fact

[9] The Defendant, Steve Ralph, was diagnosed as being HIV positive in May of 2003.

[10] Mr. Ralph acknowledged having conversations with nurses at Toronto Public Health (“TPH”) and being schooled about telling sexual partners before having sex about his HIV status.

[11] On June 2, 2003, Mr. Ralph called and spoke with Jeanette McLachlin, RN from TPH in response to a letter he received from TPH. At that time he was counselled about HIV transmission, safer sex measures, about informing healthcare providers, and he was also cautioned in no uncertain terms of the need to obtain informed consent from sexual partners by telling partners that he is HIV positive before he has sex, and that condoms were to be used all the time for every kind of sex be it oral, anal or vaginal.

[12] Nurse McLachlin, who testified, recorded on June 2nd that Mr. Ralph was aware he had a positive HIV result from his family doctor but felt “it may be wrong”. He was very tearful when he realized he was probably truly HIV positive. Mr. Ralph provided contact information for two partners since he came to Canada. Neither of these partners appear to have been his wife even though Mr. Ralph testified that once he was diagnosed with HIV he told his wife who was still with him in Canada. Mr. Ralph described telling her and how she was shocked and how they both cried.

[13] Mr. Ralph called Nurse McLachlin again the following day, as she had requested, and she noted that he was managing better. He agreed to keep in touch.

[14] Between July 21, 2003 and August 12, 2003, Nurse McLachlin attempted to contact Mr. Ralph by phone and she received a message that the customer was not available each time.

[15] On or about July 16, 2003, Mr. Ralph was counselled by St. Michael’s Hospital HIV Clinic (“SMH”) about safer sex practices and about informing sexual partners or potential partners about his HIV status. Nurse McLachlin closed the TPH file on September 22, 2003 when she followed up with SMH and confirmed that Mr. Ralph had attended SMH for counselling to reinforce the counselling that she had done. She was advised that Mr. Ralph had informed SMH that he would inform his girlfriend. Again I note that Mr. Ralph did not refer to his wife.

[16] Mr. Ralph testified that when he left SMH he left with some papers but he did not understand that he was to go back for follow up appointments. He said that they told him “you’re OK; take care of yourself”. Mr. Ralph also testified that he tried to go with the information he left the hospital with that he had a “little HIV” which he said was like early stage. He testified he didn’t understand the difference between “a little” and “early stage”. He left SMH with this word and testified that the nurse should understand. I can understand why Mr. Ralph may be confused with the term “early stage” and that he might consider that to mean he only had a “little HIV”. However, as I will review, he was corrected on this more than once and yet he still maintained this belief throughout even though he agreed that he was told HIV is HIV and he admitted that in the period 2003 to August 2007 he was not taking medication or seeing a doctor.

[17] Mr. Ralph testified that if he was told to come back to SMH he must have misunderstood. He was given a pill to drink at the hospital but he did not leave the hospital with medication. A nurse told him not to stress himself and he tried to do that. He let it go and decided to live his normal life with his wife. He wasn’t thinking about HIV. Remarkably Mr. Ralph testified that he had totally forgotten that he was HIV positive until he got sick in August 2007 and was admitted to hospital. Then he had a “flashback” which totally “refreshed my brain” that he had HIV.

[18] There is then a gap in the TPH records until July 31, 2007, when Nurse Barbara Taylor, who was not available to testify, was telephoned by a nurse at William Osler Hospital (“WOH”) to report Mr. Ralph who was described as “an HIV positive client who denies his status intermittently.” This evidence is consistent with Mr. Ralph minimizing his HIV infection by saying he only had “a little” HIV and his evidence that he “forgot” that he was HIV positive after his initial diagnosis in May 2003.

[19] At this time Mr. Ralph was diagnosed with pneumocystis pneumonia (“PCP”), an AIDS defining illness and he also had thrush. The WOH nurse advised Nurse Taylor at TPH that Mr. Ralph had acknowledged having a pregnant girlfriend but he would not provide her name or any identifying information. Nurse Taylor did not testify but there is no dispute that this information was provided to TPH at this time.

[20] Mr. Ralph admitted that he was hospitalized when he was diagnosed with PCP in 2007 and that it related to his HIV status. He was asked if he knew it was an AIDS defining illness because his HIV was becoming AIDS and he said “yes”. However, it is significant that at no time did Mr. Ralph ever refer in his evidence to the fact that his HIV infection had progressed to AIDS after 2007. This is despite the fact that he professed to know the difference when he alleges that he spoke to Complainant B in March 2008 when he alleges she told him that she had full blown AIDS. Again this is consistent with my overall impression that Mr. Ralph was trying to minimize his HIV diagnosis.

[21] Mr. Ralph testified that he began to see a doctor regularly after his diagnosis of PCP, although he told Nurse Amanda Walsh in January 2011 that Dr. Baqui had dismissed him as a patient because he was not keeping his appointments.

[22] Nurse Paula Ravazzolo, another nurse who was not available to testify, made notes in August 2007 (the day is not noted) that Mr. Ralph called and spoke to her. She records that she asked him why he told WOH he was not HIV positive and that he replied that the doctors at SMH had done blood work and told him his blood was “low” and that that was “good”. Mr. Ralph is recorded as telling Nurse Ravazzolo that he took this to mean he was not HIV positive. The notes state that Mr. Ralph told his pregnant girlfriend about his HIV status and that he said he would touch base with Nurse Ravazzolo about HIV testing for her and the baby.

[23] Ms. Garcia put these notes of Nurse Ravazzolo to Mr. Ralph and asked him whether he remembered telling her that his blood was low and that was good and he took it to mean he was not HIV positive. Mr. Ralph denied this and said that TPH had his records and they knew that he was HIV positive so there’d be no point in doing this. He went on to say however, that at this time he was under the influence of a lot of weed and alcohol every day and he was selling a lot of weed and so he might have been high or drunk and might have said something like this.

[24] The notes of Nurse Ravazzolo record that on August 14, 2007 Mr. Ralph came to her office and he stated again that he did not believe he was HIV positive because a doctor at SMH had said his blood was low and he did not need medication and no other appointments were booked. Nurse Ravazzolo counselled Mr. Ralph on the spread of HIV infection through oral and vaginal intercourse and on the need to inform his sexual partners prior to sexual acts and how this would allow a partner to make an informed decision about having sex. Mr. Ralph was also told to use condoms. He was also given information about CD4 and viral load, and opportunistic diseases. He was advised that now that he had had PCP he was classified as having AIDS. A supply of condoms was given to Mr. Ralph. The notes of Nurse Ravazzolo state that she reconfirmed in many ways that “once HIV positive, always HIV positive”.

[25] Mr. Ralph recalled this meeting with Nurse Ravazzolo on August 14th although he could not recall her name. He did not recall telling the nurse that he had gone to SMH and had been told his blood was low and that he didn’t need treatment. Mr. Ralph said he told the nurse that he was HIV positive but not “that very bad, just a little HIV” in his blood and that it was “early stage”. He remembered the nurse telling him that there was no such thing as a “little HIV.” He confirmed the nurse told him to be careful with sexual partners and to tell them and to use a condom. He also recalled that the nurse asked for his wife’s name.

[26] On the issue of what Mr. Ralph told Nurse Ravazzolo, I do not believe his evidence about what he said about SMH but that is not important. Mr. Ralph admitted telling this nurse that he only had a “little HIV”. Accordingly, it is clear that even as of August 2007, after his AIDS defining illness, Mr. Ralph was still of the view that he only had a “little HIV”. This suggests that he was still in denial about his diagnosis even more than four years after the initial diagnosis and the obvious worsening of his disease. Although I did not hear from Nurse Ravazzolo, given the concession that the notes accurately reflected the conversations; I accept that Mr. Ralph made the statements attributed to him by Nurse Ravazzolo. This is significant because this is after the time when Mr. Ralph admits he had remembered again that he was HIV positive and yet he is still telling a TPH nurse that he does not have HIV or that he only has “a little”. There would have been no reason for Mr. Ralph to deliberately downplay this for the nurses and so I conclude that is what he believed at the time. The question then is did the fact that this nurse reconfirmed that “once HIV positive, always HIV positive” have any impact on Mr. Ralph?

[27] Nurse Ravazzolo’s notes of August 14th go on to state that Mr. Ralph has a wife and child in St. Vincent and that his wife had been here from 2003 to 2006 when she was deported home. The notes state that she [a reference to the wife] is unaware of the diagnosis. As Mr. Proudlove points out it is not expressly stated that this information came from Mr. Ralph. The note ends with the statement that “informing and condom use reinforced with client”.

[28] In the note of August 16, 2007, Nurse Ravazzolo records that Mr. Ralph called and stated that he had not told his wife to phone TPH because he did not want to tell her about his HIV status. Mr. Ralph is recorded as advising Nurse Ravazzolo that he was afraid that his wife would attempt suicide if she was told about this diagnosis by anyone other than him. He refused to give any further information about his wife to TPH. At this point Nurse Ravazzolo discussed the case with her manager who recommended getting the wife’s information from Mr. Ralph and allowing the authorities in St. Vincent to deliver this information personally to her.

[29] Ms. Garcia put these notes of Nurse Ravazzolo from August 16th to Mr. Ralph. Mr. Ralph denied telling TPH that he hadn’t told his wife he had HIV or that he didn’t want to tell her or that she didn’t know. He said they must have confused him with someone else. He also couldn’t remember saying anything to the nurse about the possibility of his wife taking her life. He said Complainant B is the only one who talked about killing herself once she knew she had HIV. He said there was no way he would hide it from his wife. He said his wife was with him until 2006 when she was deported with their child back to St. Vincent. Mr. Ralph testified that after he found out he was HIV positive he and his wife cried and that whoever wrote the note; there was a “real big misunderstanding”. I do not accept this evidence. Having heard the evidence about how these notes are made and the requirement for accuracy I find that this statement from Mr. Ralph, which makes it clear that he had not informed his wife, was made by him. Although he provided some information about his wife it does not appear that he told them everything he knew about how to contact her.

[30] Mr. Ralph testified that in August 2007 he told his brother he had HIV when he was diagnosed with PCP.

[31] A couple of letters were sent by TPH to Mr. Ralph in October and November 2007 and on December 10, 2007 the TPH records note that five voicemail messages were received from Mr. Ralph stating that he was being taken care of by his doctor and that he did not need any further assistance from TPH. He refused to give any more information about his wife.

[32] A further letter was sent to Mr. Ralph according to the TPH records on January 2, 2008 requesting a person-to-person discussion. His doctor at the time, Dr. Baqui, was also called for an update. Someone in Dr. Baqui’s office told TPH that Mr. Ralph’s last visit was December 18, 2007 and that he was doing well on meds and complying.

[33] When Mr. Ralph was asked about this he remembered leaving some messages about TPH harassing him. He told them that he was fine and that he was seeing Dr. Baqui. He was very frustrated and testified that he believed TPH wanted to embarrass his wife because HIV is a big problem in his country. He had told them his wife was not HIV positive. According to Mr. Ralph, he asked his wife to be tested for HIV and although she didn’t want to she did and called him and told him she was HIV negative. I do not accept this evidence given the statements made by Mr. Ralph to TPH that follow.

[34] As of February 4, 2008 Mr. Ralph’s TPH file was taken over by Nurse Bieth who testified. Nurse Bieth testified he found Mr. Ralph to be difficult to get information from. He has a strong accent, speaks quickly and is difficult to redirect; he tends to “talk and talk”. That is an accurate description of how Mr. Ralph presented at trial when he testified.

[35] Nurse Bieth reviewed the chart and confirmed that Mr. Ralph was classified as having AIDS. Nurse Bieth’s main purpose in seeing Mr. Ralph was to get information about his wife so that they could contact her in St. Vincent. Nurse Bieth made a number of attempts to reach Mr. Ralph and got various messages including “mailbox is full”. After several attempts, a call came in from one of Mr. Ralph’s brothers who advised that he had passed the message on and that his brother would call.

[36] On February 22, 2008, Mr. Ralph called Nurse Bieth. He was advised that TPH was following up about whether his wife in St. Vincent had been informed of his HIV positive status. Mr. Ralph is reported as saying that his wife was fine but ultimately admitting that he had not informed her but that he would be going to St. Vincent the following year to tell her. The possibility of TPH getting an order pursuant to section 22 of the Health Protection and Promotion Act (“Section 22 Order”) for his wife’s name and address so that they could notify her was discussed. According to the records and Nurse Bieth, Mr. Ralph advised him that his wife saw Dr. Keith at Jane and Wilson when she was in Canada in 2006 and he gave TPH permission to verify that his wife tested HIV negative at the time. During this phone call the R. v. Cuerrier[^2] decision was explained to Mr. Ralph by Nurse Bieth and he was told that there was now a legal precedent and that he could be charged criminally if he failed to tell a partner before any penetrative sex of his HIV status. Mr. Ralph was told to always inform partners of his HIV positive status prior to any penetrative sex, even with a condom. Nurse Bieth testified that Mr. Ralph agreed to inform partners in the future.

[37] Mr. Ralph testified that he remembered this conversation. He admitted telling TPH that he was going to St. Vincent but he denied that he said it was to tell his wife he was HIV positive. He repeated many times that he would never tell a nurse that he had hidden his HIV status from his wife.

[38] In a telephone call with Mr. Ralph on February 27, 2008, he gave permission to Nurse Bieth to inform R.W. of his HIV positive status. He stated at that time that he did tell her in April 2007 (which was a couple of years after their relationship ended) that he had a “little HIV”. Nurse Bieth did not revisit the statement that he had a “little HIV” because a few days prior Mr. Ralph was advised that if he has HIV he will always have HIV. This had been discussed many times with Mr. Ralph by co-workers and two infectious disease doctors. Nurse Bieth felt that at this time it was more of an excuse. This is important because Mr. Ralph’s relationship with Complainant B began a month after this discussion with Nurse Bieth. During the same call Mr. Ralph confirmed the name of his wife in St. Vincent but refused to give her date of birth.

[39] The next day, February 28, 2008, the TPH records record the fact that the night before, between 11 p.m. and 11:45 p.m., Mr. Ralph had left five voicemail messages. Nurse Bieth recorded that he was upset that TPH was “fucking up his life” and Mr. Ralph admitted this statement. Nurse Bieth also recorded that Mr. Ralph asked that they not call his house or send him any more letters. He instructed TPH to discuss all concerns with Dr. Baqui. He stated one of his friends opened a letter that was sent to him from TPH. He also said he was taking care of himself and getting healthy.

[40] At this point the TPH records record that a contact form for Mr. Ralph’s wife was sent to the Ministry to be forwarded to Public Health in St. Vincent. The file was closed.

[41] Although Mr. Ralph did not tell other family members that he was HIV positive, he said some found out when they saw what was in his house in 2008. He said it was a very big concern that his housemate had opened his mail. Mr. Ralph did not explain which letter this was but I presume it was from TPH. However, Nurse Bieth testified that Mr. Ralph’s HIV status would not have been stated in the letter which would only have asked that Mr. Ralph get in touch with TPH “in relation to a health matter.”

[42] On March 19, 2008, a letter was sent to Mr. Ralph from TPH following up for Dr. Keith’s details. Nurse Bieth had not been able to find Dr. Keith. He asked Mr. Ralph for a phone number or address but was never able to locate him.

[43] Mr. Ralph was in an intimate relationship with Complainant B between March 2008 and August 2010.

[44] Mr. Ralph was in an intimate relationship with Complainant A between August 2010 and January 1, 2011, which is when he was arrested.

[45] Shortly after Mr. Ralph’s arrest the TPH file was re-opened when D.C. White contacted TPH requesting information. The TPH manager prepared a section 22 order and had it signed by the Associate Medical Officer of Health. The order was given to Amanda Walsh RN to deliver to Mr. Ralph.

[46] On January 17, 2011, Nurse Walsh, who testified, and a colleague who did not, visited Mr. Ralph who was in custody in Maplehurst. Her colleague was concentrating on getting quotes down on her notepad of what Mr. Ralph was saying which she gave to Nurse Walsh afterwards. Nurse Walsh wrote her notes first thing when she got back to the office; within two to four hours of her visit with Mr. Ralph. Her notes were made based on notes taken by her colleague and when she used quotation marks in her notes it means that the colleague wrote this down while they were speaking. The events were still fresh in her mind when she did her charting. She testified that her notes completely match her memory of the conversation and that she still has a very clear memory of the conversation. I find that the notes of Nurse Walsh as to what Mr. Ralph said are accurate including those portions in quotations.

[47] Nurse Walsh admitted that Mr. Ralph was not unreceptive to her and in fact they both wished they had more time to speak. He was forthright as far as she was aware.

[48] Nurse Walsh recorded in her notes that Mr. Ralph reported that when he was first infected with HIV he was told that he had an “early” and “small case” of HIV. He told her that he was off his meds for “a bit” and that he had stopped taking anti-viral medication when he felt his family was trying to look at his medications. Mr. Ralph said that despite being off his medications for a while he was always going to the doctor and that he used to beg his partner to go to the doctor too. When Mr. Ralph was asked if his partner knew of his HIV status prior to penetrative sex he stated “they knew” and that he “always uses condoms” and that he “tried to get them to doctor”. I note that Mr. Ralph did not say that his partners knew that he was HIV-positive because he had told them. Mr. Ralph also told Nurse Walsh that he had condoms all over his house and would sometimes use even two or three a night. He said condoms were important to him because “you never know what these girls have”. His statement to Nurse Walsh that he always used condoms is false by his own evidence at trial and the evidence of the complainants.

[49] Mr. Ralph also reported to Nurse Walsh that he could only have sex if he was “high, high, high”. When he was asked by Ms. Walsh about decisions around condom use Mr. Ralph responded “what can you do if the girl rips the condom off?” As I will come to this is a claim he repeated at trial in connection with Complainant A. At this point Nurse Walsh served Mr. Ralph with the section 22 order. The Crown concedes that after that the statements made by Mr. Ralph were compelled and not admissible in this trial.

[50] Counsel agree that the Supreme Court of Canada has held that, at the present time, it is a scientifically accepted view that a viral load of 1,500 copies per millilitre constitutes a “low viral load” and less than 50 copies constitutes an “undetectable viral load.” Viral loads typically decline as a result of antiretroviral treatment; see R. v. Mabior.[^3]

[51] Mr. Ralph’s HIV viral loads were tested fourteen times between June of 2003 and January of 2012. The chart below outlines the results of the viral counts for the first ten tests.

Test #	Date	Viral Load
1.	May 6, 2003	Initial Diagnosis
2.	June 20, 2003	4,805
3.	August 2, 2007	41,815
4.	November 6, 2007	<50
5.	February 21, 2008	<50
6.	November 20, 2008	11,846
7.	January 22, 2009	6,343
8.	July 12, 2010	10,621
9.	December 1, 2010	26,305
10.	January 12, 2011	1,227

[52] There is no issue that Mr. Ralph had a duty to disclose his HIV positive status to each of the complainants given his viral loads at the relevant times and the fact that most of the time, by his own admission at trial, they were not using condoms.

The Law

[53] In R. v. Cuerrier, the Supreme Court of Canada set out the basic requirements of the offence of aggravated sexual assault in the case of a defendant who is HIV positive. The court held at para. 125 that:

[p]ersons knowing that they are HIV-positive who engage in sexual intercourse without advising their partner of the disease may be found to fulfill the traditional requirements for fraud namely dishonesty and deprivation. That fraud may vitiate a partner’s consent to engage in sexual intercourse.

[54] The first requirement of fraud is proof of dishonesty which can be met by a dishonest act that consists of either deliberate deceit respecting HIV status or non-disclosure of that status. The possible consequence of engaging in unprotected intercourse with an HIV-positive partner is death. (Cuerrier at para. 126) Without disclosure of HIV status there cannot be a true consent. Rather it must be consent to have intercourse with a partner who is HIV positive. (Cuerrier at para. 127)

[55] The second requirement of fraud is that the dishonesty result in deprivation which may consist of actual harm or simply a risk of harm. The risk of contracting AIDS as a result of engaging in unprotected intercourse would clearly meet that risk. (Cuerrier at para. 128)

[56] The court in Cuerrier also held at para. 130:

… it must be emphasized that the Crown will still be required to prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the accused if she had been advised that he was HIV positive. As unlikely as that may appear it remains a real possibility. In the words of other decisions it remains a live issue. [Emphasis added]

[57] Ms. Garcia took the position that in light of Mabior it was not necessary for her to prove beyond a reasonable doubt that the complainants would not have engaged in unprotected sex with Mr. Ralph had they known that he was HIV positive. I advised counsel, when the Defence’s s. 276 application was argued, that I do not accept that submission and that I would provide my reasons for that conclusion in my judgment.

[58] Ms. Garcia relied on paragraph 4 of the Mabior decision in support of her position where, under the heading “Overview”, Chief Justice McLachlin, speaking for the unanimous court, stated as follows:

I conclude that a person may be found guilty of aggravated sexual assault under s. 273 of the Criminal Code if he fails to disclose his HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted. If the HIV-positive person has a low viral count as a result of treatment and there is condom protection, the threshold of a realistic possibility of transmission is not met, on the evidence before us. [Emphasis added]

[59] Although I agree that this overview paragraph does not refer to the requirement that the Crown prove that a complainant would not have engaged in unprotected sex had she known the defendant was HIV positive, reading paragraph 4 of the Mabior decision in the context of the entire decision makes it clear that Chief Justice McLachlin was simply summarizing her answer to the issue in that case as she had defined it and that she was otherwise reaffirming the Cuerrier decision. She stated at paragraph 3:

While R. v. Cuerrier laid down the basic requirements for the offence, the precise circumstances when failure to disclose HIV status vitiates consent and converts sexual activity into a criminal act remain unclear. The parties ask this Court for clarification. [Emphasis added]

[60] My conclusion is made even clearer at para. 104 of Mabior under the heading “Summary” where McLachlin C.J. states as follows:

To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation).

[61] McLachlin C.J. went on to find that that a significant risk of bodily harm is established by a realistic possibility of transmission of HIV which on the evidence before the court is negated by evidence that the accused’s viral load was low at the time of intercourse and that condom protection was used (at para. 104).

Analysis

[62] I now turn to my analysis. Since Mr. Ralph testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^4]apply. I must acquit Mr. Ralph if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.[^5]

[63] 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. Ralph, I am entitled to consider it in the context of all of the other evidence.[^6] However, I must remind myself that this is not a credibility contest.[^7] W.(D.) prohibits me from concluding that the Crown has met it burden simply because I might decide to prefer the evidence of either or both complainants to that of Mr. Ralph.[^8] As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.[^9]

[64] Since there are statements made by Mr. Ralph to the various TPH nurses, to the extent that I am satisfied that they were in fact made, the principles of W.(D.) apply to these statements; both the inculpatory portions and the exculpatory portions, save I should consider the fact that they were not made under oath; see R. v. B.D.[^10] and R. v. Rojas.[^11]

Credibility and Reliability Assessments

(a) Mr. Ralph

[65] Mr. Ralph was a very unusual witness in that he gave the bulk of his evidence in long narratives with very little questions from Mr. Proudlove although Mr. Proudlove did try to get him back on topic numerous times. He was the same in cross-examination. As Mr. Proudlove put it, Mr. Ralph doesn’t give “yes” or “no” answers very easily; he gives expansive, very detailed answers. Mr. Proudlove submitted that although Mr. Ralph describes things in a lot of detail and it takes him a long time to get to the point, he is not evasive. He seemingly gets off topic but it is all related in some way.

[66] Ms. Garcia acknowledged that some of what she termed “the bizarre aspects” of Mr. Ralph’s evidence is because this is how he expresses himself but she pointed out that he testified for one and a half days which gives a very good context for how he behaves and speaks when considering his evidence as a whole.

[67] I have concluded that this aspect of Mr. Ralph’s evidence does not detract from his credibility as a witness. He was the very same in cross-examination and it seems that this is how he communicates. There is evidence of this in the TPH records as well where the nurses comment on his speaking quickly and talking a lot and, as I have already stated, Nurse Bieth’s observations mirror what I observed at trial. I agree with Mr. Proudlove that Mr. Ralph was not evasive and that he did not deliberately go off topic but he does have difficulty focusing on the precise question asked.

[68] Mr. Proudlove submitted that Mr. Ralph bolstered his own credibility by the preciseness of his evidence and that he was very adamant and very believable. When he was not sure of a date or month he wouldn’t concede it and said he wasn’t going to guess. I do not accept this submission. The events that Mr. Ralph was testifying about dated back to 2003 when he was first diagnosed with HIV. The relationship with Complainant B was between March 2008 and August 2010 and with Complainant A between November 2010 and January 1, 2011. Although I would expect Mr. Ralph to have good recall of certain facts, he gave so many details including dates, time of day, and details of the precise conversation back and forth that his evidence in many respects was incredible. It was the kind of detail that I expect most people would have difficulty recounting a week or two later let alone years later. I did not get the sense that Mr. Ralph’s evidence was rehearsed but it was free flowing as if he was orally reciting a movie script. Not only is this level of detail unreliable, as Mr. Ralph has no notes or prior testimony to use to refresh his memory it suggests, as Ms. Garcia put it, that he is prepared to tell the court what is to a large degree fiction in the sense that he was making it up as he told his story.

[69] Mr. Proudlove also submitted that Mr. Ralph didn’t go to any lengths to make himself look better. Mr. Ralph’s admission of prior bad acts, for example the fact that he was a drug dealer and looking for clients to sell marijuana to on the day he met Complainant A, were volunteered by him and that speaks to his credibility. He also admitted his physical violence and the elements of forcible confinement with respect to Complainant A and pleaded guilty to the charges with respect to the other two named complainants. Mr. Proudlove submitted that when Mr. Ralph does something wrong he accepts responsibility for it.

[70] I agree that Mr. Ralph’s admission of these facts and the two charges is significant and a factor in support of his credibility. However, when Mr. Ralph spoke about his drug dealing he did not say anything to suggest he appreciated that what he had been doing was illegal or wrong. The same is true for most of his evidence with respect to the fight with Complainant A. He seemed to think it was normal that in those circumstances a guy would prevent his girlfriend from leaving or calling police.

[71] I also disagree with the submission that Mr. Ralph did not try to make himself look better. He testified that the complainants were down and out, addicted to drugs and that he was the good guy who took them in. My sense is that he sees himself as their savior.

[72] Mr. Proudlove submitted that Mr. Ralph was frank about his reluctance to publicize his HIV status and very concerned that his landlord, friends and family would know. He took great steps to hide it from a number of people. He was concerned about stigmatization and was fearful of his family in St. Vincent. Mr. Ralph testified that he didn’t want his landlord or friends to know that he had HIV as it would “wreck my life”. However, he swore that this did not include sexual partners.

[73] I agree that Mr. Ralph had no obligation to advise anyone of his HIV status unless they were a sexual partner. I also understand his desire to keep this information from his landlord, family and friends for fear of stigmatization. However, I do not see how this aspect of his evidence informs how he would behave with his sexual partners, which of course is the central issue that I must decide in this case, particularly when he was quick to commence a sexual relationship after meeting a woman. As I will come to, the fact Mr. Ralph was very secretive about his HIV status is inconsistent with his evidence that he immediately told each complainant about it.

[74] Mr. Proudlove submitted that Mr. Ralph’s evidence was internally consistent. That is true for the most part but there are some exceptions. For example, Mr. Ralph admitted that he and Complainant B’s friend K.C. (one of the complainants) had sexual intercourse on two occasions in July of 2009. Although Mr. Ralph agreed to use a condom on both occasions he did not inform K.C. that he was HIV positive prior to engaging in sexual intercourse with her. This evidence is only relevant to Mr. Ralph’s credibility as he testified that once he remembered again that he was HIV positive in August 2007, he told his sexual partners that he was HIV positive. Although he was referring to Complainant B and Complainant A, the tenor of his evidence that he immediately put all of his cards on the table and that he was not ashamed is inconsistent with his failure to inform K.C.

[75] Mr. Ralph’s evidence also conflicts in many respects with the statements attributed to Mr. Ralph in the TPH records which were made long before Mr. Ralph was charged with these offences. The most significant example of this is that the TPH records, read as a whole, make it clear that Mr. Ralph told the TPH nurses, more than once, that he had not told his wife that he was HIV positive. Although he gave some information to TPH to allow them to find her, he clearly did not give enough. He did not want her to be informed.

[76] Mr. Proudlove submitted that the Crown can’t ask me to disbelieve Mr. Ralph’s evidence with respect to his wife because there is no evidence before me from his wife. He also relies on the fact that Mr. Ralph gave his side of the story to Nurse Bieth and then the file was closed. Mr. Proudlove also submitted that I can’t “cherry pick” from the TPH records and that there are other times when the records state that Mr. Ralph did tell his wife.

[77] In considering all of the TPH records that I have referred to and the evidence of Mr. Ralph, the only reasonable conclusion I can come to is that Mr. Ralph did not tell his wife he was HIV positive as he testified he did. In fact Mr. Ralph admitted this to TPH more than once and throughout TPH was looking for the information they needed so that they could contact her. I do not accept Mr. Proudlove’s submission that the Crown needed to call her from St. Vincent to give evidence before I could reach such a conclusion.

[78] Mr. Proudlove urged me to be careful and not rely on single words that Mr. Ralph used or take a line or sentence out of the records or the evidence of Mr. Ralph out of context as he has certain phraseology because English is his second language. He submitted, for example, that when Mr. Ralph testified that “I allowed her” to do something, in reference to one of the complainants, that does not mean that he was trying to control her. I do not accept this submission. I appreciate that English is Mr. Ralph’s second language but when Mr. Ralph used this language it did not seem to be part of a figure of speech or phrase where this might be a different use of the word than its plain meaning. In addition to using the word “allow”, for example, he also used the word “privilege” in the context of giving one of the complainants the privilege to do something. Mr. Ralph said, for example, that Complainant A was the one in charge. I do not believe that. His description of the events of January 1, 2011, which I will come to, make it clear that he was the one in control and he was suspicious and jealous and wanted to ensure that Complainant A had no opportunity to see anyone else. He saw this as normal behaviour. To the extent the complainants described Mr. Ralph as a controlling person I prefer their evidence to his.

[79] Ms. Garcia submitted that some of Mr. Ralph’s evidence was quite bizarre. The fact that he had a flashback in August 2007 of his HIV status she argued did not have the ring of truth and defies belief. Mr. Ralph testified that after he was diagnosed with HIV in May 2003 he was in shock and he and his wife cried about it. He also testified that they then went on with their lives as normal, that he forgot he was HIV positive and that when he was told he was HIV positive in August 2007, after he was admitted to hospital, he had a “flashback” and “remembered” the earlier diagnosis.

[80] Mr. Ralph denied it was impossible to forget that he was HIV positive. He described himself as a hardworking man living with his wife and he said he just didn’t remember it. He said if he remembered he had HIV he would have told the nurses and that he was not hiding it. In re-examination Mr. Ralph was asked again about this evidence and he repeated that as the months passed by his life started to normalize and by 2004 through 2006 he didn’t remember it. He said he was not thinking about it and it was not in his mind and if it had been he would have taken more precautions.

[81] On this point I do not believe Mr. Ralph. Given even his own evidence as to how he reacted to the news of his diagnosis, which was confirmed by Nurse McLachlin, this is not something he would have completely forgotten. This evidence is bizarre and cannot be explained by either Mr. Ralph’s language issues or some other explanation. He did not say, for example, that he simply tried to put it out of his mind. He said more than once that he had completely forgotten about the diagnosis in 2003 and using the term “flashback” also suggests this.

[82] There is an aspect of this evidence, however, that is true in that as the records of the TPH nurses makes clear, Mr. Ralph did not accept his HIV diagnosis. As late as February 27, 2008, Mr. Ralph was still telling TPH, Nurse Bieth that he only had a “little HIV”. Nurse Bieth thought this was an excuse but Mr. Ralph had no reason to lie to him about this. I accept this is what Mr. Ralph believed at the time as there are many similar examples in the TPH records and his evidence at trial. In my view this belief illustrates that Mr. Ralph was in denial about his diagnosis and wanted his life to go on as it had before. He was minimizing the diagnosis and trying to put it out of his mind. This becomes relevant to my deliberations on the issues, as I will come to.

[83] I was also troubled by the fact, as Ms. Garcia put it, that Mr. Ralph seized the opportunity to malign the complainants whenever he could. As I have already stated, he painted himself as their savior. However, he was significantly older than Complainant B and Complainant A when he met them and started a relationship with them and his idea of helping them was to provide them with alcohol, marijuana and sex. He did not appreciate their vulnerability and described them as “big women”. I will say more about this when I consider the evidence on the specific counts but suffice it to say at this stage that I found his evidence that Complainant B had AIDS and Complainant A had lesions on her body, implying that she was HIV positive, to be self-serving and incredible.

[84] Ms. Garcia submitted that Mr. Ralph was not responding to TPH and that this adversely impacted his credibility. Mr. Proudlove submitted that the suggestion of Mr. Ralph being non-cooperative with TPH is fiction and not a reality. In my view the truth is somewhere in the middle.

[85] It is true that the TPH nurses had to persistently track Mr. Ralph down to get information with respect to his wife and that he wouldn’t give them her address. He chose to believe that his wife and child were healthy. On the other hand, there were plenty of occasions when Mr. Ralph called TPH or when a message finally reached him, that he responded. The bigger problem appears to be that he did not have a reliable cell number where he could be contacted and so time would pass by trying to contact him. To the extent Mr. Ralph did not cooperate with TPH, for example, in assisting them in contacting his wife, I find that the only impact on this case is that it is consistent with my view, based primarily on statements made by Mr. Ralph to TPH nurses and at this trial, that he only has a “little HIV” and that he believed that he was unlikely to infect a sexual partner.

[86] For these reasons, I find that I have serious concerns that Mr. Ralph’s evidence is not credible and reliable.

(b) Complainant B

[87] Mr. Ralph testified that both Complainant A and Complainant B were trying to “fake” to police and to court and that they can do this well. However, with respect to the credibility of Complainant B, Mr. Proudlove fairly conceded that she was forthright and mature. I agree. She certainly has turned her life around and she impressed me as a responsible young woman who was in court to do her best to be truthful. She had come from out of province to testify and surprisingly, notwithstanding the fact that she presumably blames Mr. Ralph for her HIV positive status, she did not seem to have an axe to grind. Her demeanour with Mr. Proudlove in cross-examination did not change from her examination in chief. Her evidence was internally consistent and when she could not recall specifics she said so. There was no suggestion that she was exaggerating her evidence or trying to skew it so that Mr. Ralph would be convicted. I found her to be a credible witness and, to the extent she could recall details of past events, that her evidence was reliable.

(c) Complainant A

[88] With respect to Complainant A, Mr. Proudlove submitted that she was immature, that she had not made life-changing decisions like Complainant B had and that she did not demonstrate well as a witness. He submitted that she was evasive and not forthright and that she saw this entire court process as more of a hassle. He also argued that her evidence was internally inconsistent about what happened on January 1st which I will come to. His biggest attack was that she never told Mr. Ralph her real name.

[89] Complainant A is 24 now and is still quite young. She came to court as required, arrived on time and remained in contact with the police. In the course of her cross-examination at one point, Complainant A said that she doesn’t want to remember this and she wants to get it done and over and she wants it to be “gone” and to “disappear”. This did suggest a reluctance to testify but not because she saw it as a “hassle” as submitted by Mr. Proudlove. There was no sign that Complainant A was reluctant to testify or that she does not take the court process seriously. I took her statement at its plain meaning-she is trying to forget what has happened to her and that is certainly understandable. Complainant A has quite a lot to deal with as she is HIV positive and has a baby. It must also be remembered that she is answering very sensitive questions which is hard to do for any person. Despite the fact that I presume she blames Mr. Ralph for her positive HIV diagnosis, I did not get the sense that she was interested in whether he is convicted or not.

[90] Complainant A did not avoid discussing the quantity of marijuana that she smoked nor did she minimize her drinking. Complainant A was asked whether or not she threw a lamp during the argument she had with Mr. Ralph on January 1, 2011. She said it didn’t occur then but she then volunteered that it happened the night after Mr. Ralph got out of jail and she was with him in a motel room. She wanted to leave and had no bus fare and they were in the middle of nowhere. Mr. Ralph wouldn’t let her leave and wet her shoes. She didn’t call police because she was drunk but was mad and threw a lamp at the wall. She did not minimize her conduct about this.

[91] I also do not accept Mr. Proudlove’s submission that Complainant A was evasive in answering questions. I noticed no change in her demeanour when he cross-examined her. She recalled fewer details than Complainant B even though her relationship with Mr. Ralph was more recent but I had no sense that this was contrived. She genuinely seemed not to have good recall of certain events but, given that she and Mr. Ralph were drinking and smoking weed every day, that is not necessarily surprising. As I have already said, I found the fact that Mr. Ralph purported to remember every minute detail to be of more concern.

[92] At the beginning when Complainant A met Mr. Ralph, she lied about her last name and told him that her name was A.S. Once they were in a relationship she admitted that she never told him that her last name was actually T. Complainant A said that it might have been because she didn’t know the neighborhood but she really couldn’t explain why and admitted that she doesn’t do this commonly. However, Complainant A also testified that Mr. Ralph never asked for her last name and she figured that he would eventually see her identification and figure out her real last name.

[93] Mr. Proudlove submitted that this is a major concern in determining Complainant A’s credibility. I do not accept that submission. I am puzzled by the fact that Complainant A did not give Mr. Ralph her real name but there is no reason that is suggested by any of the evidence that she did so for some ulterior improper purpose. Nothing was to be gained by Complainant A by giving a false name. She readily admitted that she did this at trial and I have concluded that it has very little impact on her credibility.

[94] There were some other submissions by Mr. Proudlove that certain aspects of Complainant A’s evidence were false. He pointed out, for example, that even though she was essentially living with Mr. Ralph she testified that she lived with her mother and stayed with her boyfriend. I did not find that evidence incredible. Complainant A used the same language about January 1, 2011 when she said she wanted to go home to her mother’s to get ready for her sister’s Sweet 16 party. There is no evidence that she ever moved all of her belongings into Mr. Ralph’s apartment and it seems from this evidence that she was keeping clothes that she wanted to wear at this party at her home with her mother.

[95] For these reasons I conclude that, overall, Complainant A was a credible witness. As for the reliability of some of her evidence I must consider the fact that some of her recollection was poor, as I consider the Crown’s case.

The Rule in Browne and Dunn

[96] At the end of the evidence I raised the issue of the rule in Browne and Dunn[^12] with counsel as portions of Mr. Ralph’s evidence had not been put to the complainants when they testified. I also referred to the recent decision of the Court of Appeal in R. v. Dexter.[^13] Mr. Proudlove advised me that he had a discussion with the Crown immediately after Mr. Ralph’s evidence anticipating there would be submissions with respect to the rule in Browne and Dunn. I gave both the Crown and Defence an opportunity to recall witnesses but neither counsel asked that the complainants come back for further evidence. Counsel agreed to make further submissions with respect to whether or not there was a breach of the rule in closing argument.

[97] Ms. Garcia submitted that the Browne and Dunn issues are as follows:

1. Health issues of Complainant A; namely the alleged lesions on her body.

2. That Mr. Ralph told Complainant A that he was HIV positive by saying that he had a “gift”.

3. That Mr. Ralph would ask Complainant A to put a condom on his penis before they had sex and that she was the one who did not want him to use a condom and would go so far as to rip it off.

4. That the complainants were prostitutes before he met them.

[98] Mr. Proudlove referred to R. v. Verney (1993), 1993 CanLII 14688 (ON CA), 67 O.A.C. 279, at para. 28 which was referred to in Dexter, for the proposition that the rule did not require him to put the complainants on notice of every detail the defence does not accept and that only the nature of the proposed contradictory evidence and its significant aspects need to be put to the witness. He submitted that to the extent that I found that the rule had been breached that I consider that breach as a matter of weight in assessing the evidence of Mr. Ralph.

[99] The rule in Browne and Dunn as stated in Dexter is a rule of trial fairness as it is intended to give witnesses an opportunity to explain why any contradictory evidence should not be accepted (see Dexter at para. 17). To the extent that I conclude, as I review the evidence, that the complainants were not given this opportunity, the rule will have been breached and I will have to consider the impact.

[100] I have concluded that the rule was breached in connection with Items 1 through 3 above. I have no recollection of Mr. Ralph calling the complainants prostitutes. However, as I will come to, there are other areas where I have only the very detailed evidence of Mr. Ralph and so do not know how the complainants would have responded. I will identify those areas as I proceed but I should state now that there was no impact on the weight I gave to my assessment of Mr. Ralph’s evidence on these points as I found his evidence in these areas totally incredible in any event.

Has the Crown proven beyond a reasonable doubt that Mr. Ralph did not inform the complainants that he was HIV positive?

(a) Findings of Fact Applicable to Both Complainants

[101] Mr. Ralph’s relationship with Complainant B and then Complainant A were both in the period after his “flashback” in August 2007 when he alleges that he remembered that he was HIV positive. However, as I have stated at various points in the chronology, even after Mr. Ralph was diagnosed with PCP, something he admitted was an AIDS defining illness, he continued to tell the nurses at TPH that he only had a “little HIV”, even as late as the end of February 2008.

[102] I find that that the fact Mr. Ralph continued to minimize and downplay his HIV status which, in fact, was now considered AIDS, is not consistent with his evidence that he is 110% certain that he told each of the complainants that he was HIV positive before he had sex with them and that he had nothing to hide or be ashamed of. I accept the accuracy of the statements attributed to Mr. Ralph in the TPH records. His statements to TPH suggest that he simply did not understand his diagnosis or he was choosing to deliberately downplay it. He had to be told more than once that it was not possible to have a “little HIV”. Even if he reasonably believed this after he left SMH in 2003, he could not reasonably still have believed this after his hospitalization in August 2007. As Ms. Garcia submitted, Mr. Ralph chose to believe what he wanted to believe because that way he was able to carry on as he had always done.

[103] Mr. Proudlove submitted that Mr. Ralph saw Complainant A and Complainant B as life partners. He was trying to replace his wife and it was not anticipated that they would be one night stands. He argued that since both moved in with him essentially right away, which is what Mr. Ralph wanted, it doesn’t fly in the face of common sense that he would have told them about his HIV status and put all the cards on the table.

[104] I agree with Mr. Proudlove that Mr. Ralph saw both Complainant A and Complainant B as life partners. In fact on his evidence it appears that he could not live without a woman in his life. For example, he testified that he was looking to replace Complainant B before his last day with her as he was expecting her to leave him. He also explained how he was immediately attracted to each complainant because he believed them to be Aboriginal and the fact that they liked to drink, smoke weed and have sex.

[105] However, I do not agree that as a result it makes sense that Mr. Ralph would be more likely to tell the complainants of his HIV status. In fact I find the opposite is more likely. He was in a hurry each time to find a new girlfriend and each of the complainants fit the bill of what he was looking for. He must have appreciated that telling them right up front of his HIV positive status meant a significant risk that they would decide not to have sex with him under any circumstances. From his point of view it would make far more sense not to take that risk. Mr. Ralph admitted he didn’t want his sex life affected because he had HIV. Furthermore in his own mind, as he put it in his evidence, he had had sex with women before and none had complained to him that they got HIV from him. He said that he thought “this thing [a reference to HIV] is sticking in me and no one else is getting it”. He even testified that he didn’t think he was passing HIV on to Complainant A when he had unprotected sex with her.

[106] For these reasons I find that the fact that Mr. Ralph continued throughout to minimize his HIV infection and that he believed he would not likely pass it on to a sexual partner makes it more likely that he would not have told either complainant of his HIV/AIDS status.

[107] The other issue that applies to both complainants is whether or not they knew or should have known that Mr. Ralph was HIV positive because they saw him taking medication or even just simply saw his medication.

[108] Each of the complainants was asked about whether or not they saw any medication in Mr. Ralph’s apartment or saw him taking medication and I will review their evidence separately when I get to the Crown’s case with respect to each of them. In each case I accept their evidence that they did not find out this way that Mr. Ralph was HIV positive.

[109] Mr. Ralph’s evidence on this issue was inconsistent. On the one hand he said he didn’t hide his medication from his sex partners and would even take it in front of them before putting it away. Mr. Ralph also denied avoiding keeping medication around so people wouldn’t know he had HIV but he also said that he did hide his medicine when he was living in a rooming house as he did not want the other people to find out he was HIV positive. He said he needed to be in his own private place so he would not worry about this but then said once he had his own place he still did not leave his medication out in the event a friend came over unexpectantly.

[110] Mr. Ralph also talked about being double-crossed. He said that he would put his medication away so that he wouldn’t be double-crossed and stabbed in the back with someone snapping a picture when he took a pill out and sharing it with another. Mr. Ralph also testified that he burned letters from TPH. His reaction when a friend opened one was extreme especially given Nurse Bieth’s evidence that the letter would not have said anything expressly about HIV or AIDS.

[111] I find that Mr. Ralph’s practice when he was taking his medication was to do so without anyone knowing and that he kept his medication out of sight. I also find that in any event even if either complainant saw Mr. Ralph taking medication at any point, there is no reason to think that they would know that the medication was for HIV. As I will come to their knowledge of HIV at the time they met Mr. Ralph was limited. Furthermore, since the question I must consider is whether or not Mr. Ralph told each of the complainants that he was HIV positive before he had sex with them and since in each case the relationship turned sexual very quickly, there would have been no opportunity for them to find out about his HIV positive status by seeing medication in his apartment.

[112] I also agree with Ms. Garcia that Mr. Ralph’s evidence that he wanted his sexual partners to know of his HIV status is inconsistent with his evidence. The fact that he was so secretive about his HIV status with others and his evidence about worrying about being double-crossed makes it much less likely that he would want to disclose his HIV status to women he had only just met. He may have seen them as potential life partners but he would not have known that they would have a long term relationship when he just met them and, of course, relationships often come to an unhappy end. Furthermore, as I have already stated, his evidence that he had no difficulty putting his cards on the table and telling sexual partners of his HIV positive status after he remembered he was HIV positive in August 2007 is contradicted by his admitted failure to advise K.C. that he was HIV positive before having sex with her.

[113] I conclude for these reasons that there was no way for either complainant to know of Mr. Ralph’s HIV status unless he told her.

(a) Complainant B

[114] I will deal with the Crown’s case with respect to Complainant B first as her relationship with Mr. Ralph was before his relationship with Complainant A. Complainant B met Mr. Ralph in March 2008 when Mr. Ralph’s brother introduced them. She was 18; almost 19 at the time and Mr. Ralph was 31years old. She was in an intimate relationship with Mr. Ralph’s brother and, like Mr. Ralph, had a spouse from St. Vincent who had been deported.

[115] Complainant B has since graduated from high school but when she met Mr. Ralph she had dropped out and had only reached Grade 10. She had taken health courses and learned about sexually transmitted diseases (“STDs”) and that wearing condoms would reduce their risk. She knew this was a recommended way. She knew HIV was potentially deadly and that she could contract it through sexual contact.

[116] When Complainant B met Mr. Ralph she got his phone number and called him a couple of weeks later so that she could see him. This is consistent with the evidence of Mr. Ralph who said that from the day he met Complainant B, when she was with his brother, to when she came to his house was probably one and a half to two weeks. Complainant B, however, testified that she wanted to see him to “get high” and had not planned on having sex but both of them decided to.

[117] Complainant B testified that the relationship started off quickly. Mr. Ralph also said they became very serious quickly. Complainant B testified that she stayed with Mr. Ralph the weekend that she met him and they slept together pretty much instantly. She moved in with him in April or May of 2008 and at that time he was living in a house on Martin Grove.

[118] Complainant B testified that before they had intercourse Mr. Ralph never told her that he had any STDs or that he was HIV positive. Before having sex with Mr. Ralph she did not ask him about STDs or protection; there was no conversation about STDs or condom use. Complainant B didn’t see any condoms or look for condoms and Mr. Ralph didn’t mention them. She had no recollection about asking Mr. Ralph about his health and she had no concerns about his health when she started having sex with him.

[119] Complainant B testified that she and Mr. Ralph were intimate every day. They did not use condoms save that Complainant B recalled that they tried to use condoms a couple of times but Mr. Ralph could not keep an erection. She did not remember if he was the one who suggested it or when they tried or how often they tried but it was more than once. Complainant B denied taking condoms off Mr. Ralph. She could not remember any discussion but said it was both of their ideas to continue without a condom as without a condom Mr. Ralph had no problem. Complainant B said it was always a mutual decision to not use a condom but added that she didn’t think there was an issue. When asked why she did not think there was any issue Complainant B replied that she did not think there was anything wrong with Mr. Ralph and she did not think there was anything wrong with her. When asked why she didn’t think there was anything wrong with Mr. Ralph, Complainant B answered that she “assumed” instead “knowing”. When asked why she made this assumption she said that she did not know. Her evidence that she and Mr. Ralph did not use condoms was not challenged in cross-examination.

[120] Although it is not clear when, Complainant B testified that Mr. Ralph told her that before she met him he had been hospitalized for pneumonia but he told her it was as a result of a rooming house and the water. During the course of the relationship Complainant B knew that Mr. Ralph couldn’t handle the cold and that he would get headaches as a result. She never saw any medication around the house save for some for thrush. She couldn’t recall the name or how often he took it. She also recalled that Mr. Ralph had Tylenol or Advil. Complainant B testified that she did not see any other medications apart from these.

[121] Complainant B was not using birth control or any other form of protection from STDs with Mr. Ralph. She never asked Mr. Ralph about STDs and she had no concern he had HIV. She thought she might have become pregnant with Mr. Ralph but has no children.

[122] Complainant B testified that the entire time she was with Mr. Ralph she never knew he was HIV positive. The first time she knew Mr. Ralph was HIV positive was during a phone interview with D.C. White on January 11, 2011. She was tested the same day and two days later found out that she is HIV positive. At the time she knew the most terrifying parts of HIV. Now she knows it’s possible to live with it and be healthy.

[123] Mr. Ralph’s account of how the relationship started was considerably more detailed. He testified that Complainant B came to his house on April 9, 2008 and that she was looking for a one night stand because she was married. Mr. Ralph told her he was looking for a love relationship and that if she had sex with him once she would never want to leave.

[124] When asked if he told her about his HIV status Mr. Ralph said “Oh yeah” and that he was so “very, very hungry to see her;” he had been waiting days for her to come to see him. He testified that he took her straight into his house and wanted to explain his problem to her. He said he did it right off the bat because he was putting all of his cards on the table and holding nothing back. According to Mr. Ralph, he told Complainant B then that he was HIV positive and that he had been told by his doctor and the nurse to inform his sex partners. He said it was up to her whether or not she wanted to have sex and that she could leave or not. He also told her there were a lot of condoms in his house. According to Mr. Ralph, he also told her that he had been diagnosed with “very bad” pneumonia and had been hospitalized.

[125] It is significant that Mr. Ralph also testified that he told Complainant B there was a “chance” but he didn’t think she “might catch it [HIV]” because he had experiences before and no one complained that they caught HIV from him. He said he told her that he didn’t think “it’s that bad in me”. However, Mr. Ralph denied the suggestion that he wanted to forget his HIV status when he met Complainant B.

[126] Mr. Ralph testified that he “110% guaranteed” that he told both Complainant A and Complainant B about his HIV status. He said he had nothing to hide, that it was “so easy” telling them, that he was “not ashamed and that they were too comfortable and too relaxed with him.” He let them know that it was their choice and testified he had no problem telling them that.

[127] Mr. Ralph went on to testify about the fact that a few days before Complainant B came to see him at his house he got a call at 2 a.m. one night when she was at St. Joseph’s Hospital. He said she was “crying so bad” and she told him that she had chlamydia. She also told him that she had another problem that she would share with him at his house. He asked if she would share it with friends and she said “no”. He said he was waiting “like a leech” at his house “begging her to come over” as he knew he had unfinished business with her from the night that she called.

[128] Mr. Ralph testified that during this conversation at his home, when he told Complainant B about his HIV positive status, he also told Complainant B that he wanted to know about her too. He asked her about this “unfinished business” and she told him straight up that she had AIDS. Mr. Ralph said he was shocked and couldn’t believe it. He testified that Complainant B told him that she’d gotten it a long time ago and that no one knew; not even her mother or best friend and that he was the only one she had shared it with. Complainant B told him she didn’t feel comfortable with her best friend but she felt comfortable with him talking on the phone and that she told him because she could trust him. Mr. Ralph testified that Complainant B wanted someone to trust and that she wanted it to be very confidential. She did not want anyone else to know and she made him promise that he would never tell anyone her secret even if they broke up. According to Mr. Ralph, Complainant B told him this so “smooth and easily” because she could trust him. In cross-examination, however, Mr. Ralph’s evidence was very different; he testified that he “broke” Complainant B down like a lawyer and she could not hide the fact that she had AIDS from him as a result.

[129] Mr. Ralph testified he knew what Complainant B was going through. He told her that he did not have AIDS, that AIDS was a lot worse than HIV, that AIDS could kill you “boom like that” whereas HIV could give you a second chance. Mr. Ralph denied ever being told that he had full blown AIDS which is at odds with the fact that when he was hospitalized in August 2007 he was diagnosed with an AIDS defining illness.

[130] Mr. Ralph testified that he told Complainant B that his specialist was just down the road, as was the hospital, and that he showed her his medication which was all over the house. Complainant B denied Mr. Ralph showing her his medication and telling her the difference between HIV and AIDS. She admitted that Mr. Ralph wanted her to have a checkup but she didn’t think she needed one. According to Complainant B, her health was good when she met Mr. Ralph. She only went to a doctor when she had an issue. She denied telling Mr. Ralph that she was HIV-positive and that that was the reason why he wanted to take her to a doctor. She was not asked any questions about the detailed account of Mr. Ralph as to how she allegedly called him and then told him that she had AIDS. She was never tested for HIV before her conversation with D.C. White. She denied the suggestion that she told Mr. Ralph to switch from social services to disability because she knew that he was HIV positive. She knew that he suffered from depression and believed that this and the fact that Mr. Ralph got sick when he was cold would justify it.

[131] Mr. Ralph moved to Humber College Blvd. and Complainant B was still with him. They were living there in 2009. In July 2009 Complainant B went to British Columbia because her grandfather was sick and dying. She was out west for one month and back in August 2009.

[132] Mr. Ralph picked Complainant B up at the bus station and immediately confessed to her that he had slept with K.C., who was a friend of hers at the time. Complainant B got mad at Mr. Ralph and tried to leave but he didn’t want her to and she ultimately continued to live with him and the relationship carried on. The only change was that they had sex less frequently.

[133] Complainant B described the relationship as up and down. They would fight over stupid things. It got worse in 2010 and they fought more about things that she wanted to do and things Mr. Ralph didn’t want her to do. They just didn’t get along. She didn’t like as she put it “being controlled”. If Mr. Ralph didn’t want her to do something then she didn’t. Complainant B left Mr. Ralph in March 2010 and the relationship was absolutely finished by August 2010.

[134] Having considered all of the evidence I find that the Crown has proven beyond a reasonable doubt that Mr. Ralph did not tell Complainant B that he was HIV positive before he had sex with her. I have already set out a number of concerns with respect to Mr. Ralph’s credibility. In addition, he met Complainant B right after his dealings with Nurse Bieth and, as I have already reviewed, he was still minimizing his HIV status at that time. His reaction to a friend opening a TPH letter, given what Nurse Bieth said the letter said; or more importantly did not say, was over the top. He made it clear that he believed Nurse Bieth and TPH were interfering with his life. There is no suggestion, certainly in his dealing with TPH, that he had suddenly seen the light and was now going to tell his sex partners of his HIV status. As I have already stated, he was still worried about being “double-crossed” and so confiding this in someone he had just met is extremely unlikely. Furthermore, his suggestion that he began to disclose to partners after his diagnosis of PCP in August 2007 is contradicted by his own admission that he did not inform K.C. of his HIV positive status when he had sex with her in July 2009.

[135] My conclusion in this regard is reinforced by Mr. Ralph’s own evidence of what he told Complainant B. Even now he does not acknowledge that at that time he could infect Complainant B with HIV; he seems to still believe that he did not have it “that bad” and that he did not think she would “catch it”. I believe he is still minimizing his diagnosis because he did not tell Complainant B of his HIV status and perhaps this is how he rationalized not telling her in his own mind at the time. Furthermore, the evidence of Complainant B, that Mr. Ralph had difficulty keeping an erection if he was using a condom, was not challenged. This is the more logical reason for why he did not want to use a condom and why Complainant B agreed with that. I do not believe that she ever ripped a condom off him.

[136] In addition, I find that the evidence of Mr. Ralph about the phone call he alleges that Complainant B made to him, confiding in him that she had chlamydia, and that she then told him when she met him at his house that she had full blown AIDS is a complete fabrication, presumably to explain why she would have had unprotected sex with him. First of all, there is the remarkable coincidence that Complainant B, a woman Mr. Ralph met by happenstance and with whom he wanted to have an intimate relationship with, would happen to have full blown AIDS, something he did not even appreciate he had at the time. Furthermore, even though Mr. Ralph had only met her once, and he admitting knowing that Complainant B has a family and that she is close to her mother and sister, he would have us believe that she chose to call and confide in him. It simply makes no sense. If this is something that Complainant B had just found out, she had been in a sexual relationship with Mr. Ralph’s brother when she met Mr. Ralph. If she was going to tell anyone I would have expected it to be the brother, not Mr. Ralph whom she had only met once. There is also the fact that although Mr. Ralph knew that Complainant B had had sex recently with his brother, he admitted that he did not tell his brother that she was HIV positive or that she had full blown AIDS. Furthermore, given my finding that Mr. Ralph was not truthful about his evidence that Complainant B admitted having full blown AIDS, the fact he wanted her to go for a checkup is more consistent with him not telling her about his HIV status and wanting to confirm his belief that she would not likely catch HIV from him. Unfortunately, whether he truly believed that she might not become infected, he had no regard for her health and safety or her life.

[137] For these reasons I totally reject Mr. Ralph’s evidence that he told Complainant B before they had sex for the first time that he was HIV positive. His evidence does not raise a reasonable doubt. I do believe Complainant B when she states that she did not know Mr. Ralph was HIV positive until January 2011 when D.C. White told her. Although she did not take the precautions that she should have, the onus was on Mr. Ralph to advise her of his HIV positive status. She had no onus to make inquiries of him. Had she known of Mr. Ralph’s status, at the very least I find that she would not have so readily agreed to have unprotected sex with Mr. Ralph.

[138] For these reasons, considering all of the evidence that I do accept, I find that the Crown has satisfied me beyond a reasonable doubt that Mr. Ralph did not tell Complainant B that he was HIV positive at any time during their relationship and that she had no other way of knowing this.

(b) Complainant A

[139] Complainant A met Mr. Ralph at the Albion Mall in August 2010. They just ran into each other and started talking and took it from there. She was 21 years old at the time and going into Grade 11. She was from Scarborough and new to this area and had been staying in a shelter near the mall for one to two weeks, although she still described her mother’s house as her home. Mr. Ralph was 33 and living in a room on Jane Street although Complainant A was not sure about this.

[140] In cross-examination Complainant A said that on the day that she met Mr. Ralph she called him afterwards and met up with him a second time. They went to a staircase in a nearby building and talked and smoked. They were by themselves. She denied having any physical contact with Mr. Ralph in the staircase but said that he asked her if she wanted to have sex and that she said “no” and that she had just met him. She denied even kissing him.

[141] According to Mr. Ralph, he met Complainant A the first time on July 29, 2010. He had gone to the Albion Mall to see if he could sell some weed. According to Mr. Ralph, he told Complainant A that he likes to have sex the same time that he meets a lady and that they left the mall to have sex. They headed to a park but there were too many people there so they went to the staircase of an apartment. They kissed there and had a joint but nothing else. He went home to wait for Complainant B, whom he was expecting, and Complainant A went home as well. Mr. Ralph testified that right from the very first day he wanted Complainant A to be his wife.

[142] Complainant A testified that she couldn’t remember what they did the third time they saw each other but the fourth time they went back to Mr. Ralph’s room after having a drink. According to her, there had still been no physical contact save for a goodbye hug but on the fifth time she met with Mr. Ralph, she slept over at his house. They drank, smoked weed and had sex.

[143] According to Complainant A, before they had sex for the first time she asked Mr. Ralph if he had “anything”. It is not clear if she added the words “like STDs” but that is what she was asking about or as she put it “stuff like that”. Mr. Ralph said “no”. She never asked him this again. In cross-examination Complainant A testified that she is the one who brought it up because Mr. Ralph wanted to have sex without a condom. She can’t remember exactly what she said but she asked him if he had “anything” and he told her “no”. That was good enough for her because they had sex that time with a condom. Prior to having sex with Mr. Ralph for the first time, Complainant A testified that he did not tell her that he had any health problems, that he was HIV positive or that he had any STDs at all.

[144] As I have already stated, according to Complainant A, Mr. Ralph used a condom that night. She testified that he wanted to take it off and she said “no” because she didn’t know him very well. Complainant A testified that she didn’t have sex without a condom if she didn’t know the person well and that she needed protection from STDs and diseases.

[145] Complainant A testified that a couple of days later; her sixth time with Mr. Ralph she went back to his place but they were not intimate. They went together to Walmart and while they were there Mr. Ralph was arrested and taken to jail. She just left and went home.

[146] Complainant A believes that she was only intimate with Mr. Ralph once at his house from the time that she met him to the time he went to jail. She did not speak to Mr. Ralph while he was in jail. Once Mr. Ralph got out of jail she got into a serious relationship with him and he was her boyfriend.

[147] Mr. Ralph’s account of what he and Complainant A discussed before they had sex for the first time was very detailed and very different from Complainant A’s. Mr. Ralph testified that Complainant A never asked him one word about a medical problem. He denied knowing about the acronym “STDs” before this case. Most of the rest of his evidence was not put to her when she was cross-examined. Mr. Ralph testified that Complainant A phoned him the day after they met at the Albion Mall and asked him to come and get her. He did so and took her to his place. On the way to his house Mr. Ralph testified that he told Complainant A that he had a “big surprise” for her that was a “beautiful gift” and that she would be “shocked” when she saw it. He said that when they got to his place they had a shot of alcohol and he ate something. According to Mr. Ralph, he told Complainant A that he wanted to talk to her and that it was very important. She was asking him to hurry up and wanted to know what the gift was. He told her that all cards were on the table and that there was something that he had to let her know and that “this is my gift”. According to Mr. Ralph, he went on to tell her that he was told by his doctor, Public Health and the government that he was HIV positive and that it was her choice if she wanted to have sex with him or not. He showed her condoms that were all over the house. Mr. Ralph described Complainant A as a “don’t care girl” and that when he told her, he told her to take it seriously and that it was not a joke. Complainant A waved her hand and said “whatever, whatever – I don’t want to hear about it”. This made him feel “a little bad inside his heart” and so he told her he wanted her to listen and that he had to tell his sex partners and they had to choose. Complainant A responded that she was listening to him and was right there in front of him. According to Mr. Ralph, he told her he was on medication and that he sometimes skipped it if he was drinking. He told her she could think about this decision and leave right away if she wanted or have a drink and then leave.

[148] At this point Mr. Ralph testified that Complainant A went to lie down on the bed and left him where he was for five or six minutes. He thought this was a little rude but felt maybe she was tired. He then went to the bed to lie down beside her. He started to kiss her and before they had sex, according to Mr. Ralph, he reminded her that it was her choice. He said he was going to give her a condom and that she had to put it on him and that she had to “fuck him” not him “fucking her.” She said that he didn’t need a condom and kept shutting him down and he kept saying “no baby you need the condom”. Mr. Ralph testified that he then found out that Complainant A was having her period and so her “vagina was out of service”. He discussed with her trying “another hole” and that he would use a condom if she helped him put it on. As this continued he asked her if she was sure that she wanted to “do it” and said that he would give her his private and that she would have to put the condom on. She did and so the first time he had sex with Complainant A he used a condom. None of this evidence was put to Complainant A.

[149] It is significant that Mr. Ralph also testified that he knew he had a disease and that Complainant A could get it from him but that he had never had anyone complain to him that he gave them HIV even though he had unprotected sex with a woman before. He said that he thought “this thing is sticking in me and no one else is getting it”. He didn’t think he was passing HIV on to Complainant A when he had unprotected sex with her although he also said that he prayed to God that she wouldn’t get it. Again it seems he was minimizing his illness and the risk of infection.

[150] According to Mr. Ralph, Complainant A’s reaction to his disclosing that he was HIV positive was “too suspicious” and he thought that there was “something fishy” about Complainant A. He started to think something was wrong with her and he testified that he wanted to find out if she had HIV or AIDS. He said that he asked her if she had a specialist and whether or not she had HIV or AIDS but she didn’t want to talk about it and he didn’t press her. Although Mr. Ralph believed something was wrong with Complainant A he testified he was not saying it was HIV. In fact he also testified that he did not think that she had HIV when he met her.

[151] This was another area where Mr. Ralph’s evidence was internally contradictory as he also testified that Complainant A had sores on her skin all over her body and that based on a discussion with the doctor; I presume his doctor, he believed they could be caused by HIV or AIDS. He admitted that Complainant A never told him that she had AIDS. Mr. Ralph testified that it was very hard to stick around in the relationship because of this but he did. Again, none of this evidence was put to Complainant A.

[152] Mr. Ralph testified that he wanted Complainant A to go to a doctor but he did not say that he discussed this with Complainant A. He said that when she called from the doctor’s office, when she was there with her mother, (it was not clear whether this was Complainant A’s doctor or one Mr. Ralph recommended) she said she was doing tests that were just blood tests but clearly he was suspicious they were more. None of this evidence was put to Complainant A.

[153] Returning to the chronology of the relationship, according to Complainant A, a couple of months after Mr. Ralph was arrested he called her on her cell phone. She said this was in November 2010. At the time Complainant A was at her mother’s and she agreed to meet up with him. Mr. Ralph came with his brother to Scarborough and they picked her up. His brother drove them to a motel in the west end of the City and dropped them off. At the motel they were drinking and “chilling” and she and Mr. Ralph had sex. Complainant A could not remember if it was with a condom or not. Complainant A explained this by admitting that she got really drunk; she had a whole bottle by herself and as a result can’t remember. Mr. Ralph made no mention of the time he and Complainant A went to a motel.

[154] After Mr. Ralph got out of jail he got a room in the basement of a house on Weston Road. Complainant A testified that she was still living at her mother’s but she spent all of her time with Mr. Ralph. They would smoke weed and she would typically drink part of a mickey every day. She would get drunk but said she was not “stupid drunk” in that she knew what she was doing. Mr. Ralph did not drink but smoked weed.

[155] Complainant A also said that they had sex every day. The first couple of times they used condoms and then they stopped using condoms. She could not give a date as to when this occurred but after it began, they never used condoms again. Complainant A also testified that although she wanted to use condoms in the beginning, Mr. Ralph didn’t want to use them although he didn’t say why. He just stopped and when she asked him one day he said he didn’t like condoms.

[156] Again Mr. Ralph’s evidence as to the use of condoms is very different. He testified that when they had sex he would put a condom in Complainant A’s hand and ask her to put it on him herself and that sometimes she refused. He also testified that she would “rip it away” and “fight” him when he wanted to use a condom. According to Mr. Ralph, even if he wanted to use a condom Complainant A would take it off although he said there was one time when he stopped her; he wanted to use condoms as they were “there to be used”. Complainant A, however, wouldn’t have sex with him if he was wearing a condom. Mr. Ralph testified that condoms turned Complainant A off and she would even get dressed and walk out if he tried to use a condom. Mr. Ralph posited the question “what can I do” if she didn’t want to use a condom? I note this is something he told Nurse Walsh as reflected in the TPH records. At trial Mr. Ralph stated that “I am the good person here”. According to Mr. Ralph, Complainant A was the one in control and she called the shots. He said it was her way or the highway. None of this evidence was put to Complainant A.

[157] In the course of cross-examination at one point Complainant A said that she doesn’t want to remember this and she admitted that trying to forget is a coping mechanism. When it was suggested that accordingly it is possible that Mr. Ralph had told her he was HIV positive she testified that he didn’t tell her and that she was “positive” on that. She added that she would not sleep with someone if he told her that he had HIV and that it’s a matter of “common sense”. When she asked why it was a matter of common sense she said she didn’t know. She admitted that she didn’t always use protection with Mr. Ralph and that she knew there was a risk of having unprotected sex with him. When asked if she did anything to minimize the risk she said she didn’t because she “wasn’t thinking”.

[158] Complainant A acknowledged that she had had health and sex education in Grade 11 and had learned the importance of using condoms to decrease the risk of the transmission of sexually transmitted diseases. At the time that she was involved with Mr. Ralph, Complainant A understood that HIV was transmitted sexually and she knew that HIV is a disease that “you can’t get rid of”. She acknowledged seeing pamphlets about safe sex at the shelter. She had also had a discussion with her mother about wearing condoms to avoid being exposed to disease. She knew a condom reduced the risk of STDs. Complainant A was not on any birth control when she met Mr. Ralph nor did she go on any during the time that she was with him.

[159] Mr. Ralph testified that he took his medication in front of her and that his medication sat in a cup next to his marijuana on the night table next to Complainant A. He also admitted, however, that there were times when he put it away in a safer spot. Mr. Ralph also said that he was on disability at this time. Complainant A said that she did not know the symptoms of HIV or AIDS and she did not know what medication was used to treat HIV. She testified that she did not notice any medications around the house and she denied taking any of Mr. Ralph’s medication. She also denied the fact that Mr. Ralph took medication in front of her. She testified that she only saw medication once when she had a headache and he tried to give her a painkiller. Complainant A also testified that she did not notice anything about Mr. Ralph’s health.

[160] Mr. Proudlove did not suggest to Complainant A that she was HIV positive when she met Mr. Ralph nor did he ask her about any illness that could explain the alleged lesions. In cross-examination Complainant A was asked if, prior to January 2, 2011, she knew she had ever been tested for HIV. She said that she believed that in 2008 she went for blood work and everything was tested but at the time she thought they checked everything. Now she knows differently so she does not know if she was tested for HIV before January 2, 2011. Although she had gone for regular physicals before she had never been told that anything was wrong with her health. Pictures of Complainant A were introduced into evidence and Ms. Garcia submitted that they establish that she did not have lesions. The difficulty with this is that they do not show her entire body. I did not find these to be relevant to that issue.

[161] Complainant A testified that she found out for the first time Mr. Ralph was HIV positive on January 1, 2011 right after she gave her statement to police when D.C. White told her this. She said that when she was told this she went quiet for a minute and then she laughed and she thinks that she said “Are you serious?” She said she was in shock and then had tears in her eyes. She went to the washroom and turned pale and threw up and then called her friend. She had no idea that Mr. Ralph had HIV. She doesn’t remember what she was thinking. She insisted that she was sick in the bathroom because of what D.C. White told her and not because she was hung over. She said that the thought of it and how he didn’t tell her made her sick.

[162] Complainant A was then tested for HIV and within a week or so found out that she was HIV positive. She had never been told before this that she was HIV positive.

[163] D.C. White testified that when he told Complainant A that Mr. Ralph was HIV positive she gasped, put her hands to her face and tears began streaming down her face. He would say she was in shock or terror. She had a panicked look. She had an open mouth as if to answer a question but nothing came out. She asked to go to the washroom and when she stood up she was wobbly and unsteady. She appeared distraught to him.

[164] Sergeant Laush believes he was present when Complainant A was told of Mr. Ralph’s positive HIV status. He does not have any notes but recalls from memory that Complainant A was stunned. He recalls putting himself in her shoes. He couldn’t recall if she said anything but was sure that she did but he made no notes of it. In cross-examination when asked what he meant by stunned Sergeant Laush said it was based on what he saw and heard. She wasn’t freaking out which he would have anticipated. She seemed calm because she didn’t get up and wave her hands around. She remained seated and did not yell or raise her voice.

[165] Ms. Garcia relies on the evidence of these officers as to Complainant A’s demeanour as she submits this corroborates Complainant A’s evidence that she did not know Mr. Ralph was HIV positive. Mr. Proudlove points out that Complainant A said she laughed first when she was told about Mr. Ralph’s HIV status and this suggests that the evidence of the officers is tailored.

[166] This is a difficult issue as if this was the first time Complainant A was told that Mr. Ralph was HIV positive she might not have a reliable memory of her outward reaction. On the other hand if she did make what I presume was a nervous laugh I would have expected the officers to notice that as it would not be what they expected. However, the officers do recall Complainant A being shocked and going to the washroom and this is consistent with her evidence. Although I do not rely on this evidence a great deal I do find it provides some support for Complainant A’s position that she did not know.

[167] In considering the evidence I have absolutely no difficulty in concluding that Mr. Ralph’s evidence that he told Complainant A that he was HIV positive is a fabrication. His evidence that he told her that he had a “gift” and that this was in fact telling her he was HIV positive is totally incredible. I also find it difficult to believe, on his evidence about a fear of being double-crossed that he would tell her what he protected as a secret having only met her once. His evidence as to what he was thinking at the time he put all of his cards on the table is significant too. As I have already stated he believed that he was not infecting anyone. This belief would give him far less reason to even tell Complainant A of his HIV status given the risk it would mean that she would not have sex with him.

[168] Furthermore, to think that he told her and that he wanted to use a condom but she would rip it off is also unbelievable given what Complainant A knew about HIV. While not wanting to use a condom makes more sense from Mr. Ralph’s perspective, particularly since he never denied the evidence of Complainant B that he had difficulty maintaining an erection if he had a condom on, there could be no explanation that is at all credible why as a woman, having been told that her intended sexual partner was HIV positive, she would so aggressively insist that a condom not be worn. It is an absurd suggestion. To top it off, this evidence is at odds with the fact that on one small point Mr. Ralph agrees with the evidence of Complainant A-he wore a condom the first time they had sex.

[169] In addition, Mr. Ralph’s evidence about how he was suspicious about Complainant A’s reaction and his contradictory evidence about whether or not she was HIV positive, is also beyond belief. As Ms. Garcia pointed out, this is another unexpected coincidence. In my view this evidence was fabricated by Mr. Ralph to provide some explanation for why Complainant A would, as he put it, act “suspiciously” by agreeing to have unprotected sex with him even though he was HIV positive. Even Mr. Ralph appears to appreciate that that is not likely unless she had nothing to lose.

[170] For these reasons I totally reject Mr. Ralph’s evidence. I also find it does not raise a reasonable doubt. I believe Complainant A when she states that she did not know Mr. Ralph was HIV positive until January 1, 2011 when D.C. White told her. There is some support for that from the officers who saw her reaction and in Mr. Ralph’s attitudes and beliefs as disclosed in the TPH records. Considering all of the evidence that I do accept, for these reasons I find that the Crown has satisfied me beyond a reasonable doubt that Mr. Ralph did not tell Complainant A that he was HIV positive at any time during their relationship and that she had no other way of knowing this.

Has the Crown proven beyond a reasonable doubt that the complainants would not have had unprotected sex with Mr. Ralph had they been told that he was HIV positive?

(a) General

[171] Mr. Proudlove conceded that both complainants knew of HIV and that it was sexually transmitted and that it can harm or kill you. They were also aware to the extent necessary of the potential of contracting HIV and other STDs if they had sexual intercourse without a condom.

(b) Complainant B

[172] Ms. Garcia asked Complainant B if she had known before she slept with Mr. Ralph in March 2008 that he was HIV positive whether she would have done so. Complainant B paused before she answered and then said “probably not” in a questioning way. When Ms. Garcia went on to ask if she would have agreed to unprotected sex she more forcefully said “nope”. When asked about her answer “probably not” Complainant B testified that the thought of HIV was a terrifying thought that scared her. In March 2008 she knew that you would die from HIV and that you could get it through sexual intercourse and intravenous drug use. When asked again if she would agree to sex if Mr. Ralph had told her that he was HIV positive, even though she was only 18 at the time, she again answered “nope”. She also testified that before or during her relationship with Mr. Ralph she had never agreed to have sex with someone that she knew was HIV positive or suspected to be HIV positive. This was a question that I ruled was permissible as a result of the Defence s. 276 application, see R. v. Ralph[^14].

[173] In cross-examination Complainant B again denied the suggestion that if she had known Mr. Ralph was HIV positive that she would still have had sex with him. When asked about her answer “probably not” in her evidence in chief, Complainant B said that she was ignorant and knew the worst thing about HIV. She reaffirmed her earlier evidence that had Mr. Ralph told her she would not have done it. She was then asked whether or not she thought at the age of 18 she was intelligent enough, strong enough, and wilful enough and in control enough to be able to protect herself notwithstanding whatever amorous advances had been made by Mr. Ralph. She maintained that she was, although she agreed that she did very little to protect herself.

[174] After Complainant B found out that Mr. Ralph had cheated on her she continued to have unprotected sex with him. She admitted that he cheated on her another time with another girl. Although he had been exposed to two other partners during that time she continued to have unprotected sex with him; she testified that she didn’t think there was a risk. I did not find that evidence surprising given all of her other evidence.

[175] I have considered the fact that Complainant B, as she admitted, did little to protect herself. This was the issue that I considered on the s. 276 application as Mr. Proudlove wanted to explore whether the complainants had previously engaged in high-risk sexual behaviour to challenge their expected evidence that they would not have engaged in sexual intercourse with Mr. Ralph had they been aware of his HIV status. In deciding the application I concluded the fact that the complainants may have engaged in unprotected sex with others, notwithstanding that they were aware generally of the risk of HIV transmission, would not assist me in determining whether or not they would have accepted such a risk had Mr. Ralph told them that he was HIV positive before they engaged in unprotected sex with him. I come to the same conclusion insofar as Complainant B’s sexual relationship with Mr. Ralph was concerned. She was not using birth control and agreed to have unprotected sex with Mr. Ralph soon after she met him. However, taking those unquantified risks is one thing; being told that Mr. Ralph was HIV positive and risking infection of a disease she believed would kill her is very different.

[176] Having found that Complainant B was not HIV positive and did not have AIDS when she met Mr. Ralph, and finding that she did not find out that he was HIV positive until early January 2011, long after her relationship with him ended, I find that Complainant B’s evidence that she would not have had unprotected sex with Mr. Ralph had she known he was HIV positive, in the context of the other evidence and the findings that I have made, including the fact that Complainant B and Mr. Ralph regularly had sex without a condom, persuades me beyond a reasonable doubt that Complainant B would not have had unprotected sex with Mr. Ralph had he informed her beforehand of his HIV positive status. For these reasons I find Mr. Ralph guilty of Count # 4.

(a) Complainant A

[177] When Complainant A was asked in her examination in chief if during her conversation with Mr. Ralph, before she had sex with him for the first time, he had said “yes” he had HIV, whether or not she would have had sex with him, she answered “probably not, no”. Ms. Garcia suggested that Complainant A stated this in a sarcastic tone bit if she did I did not catch that. When asked if Mr. Ralph had told her during their relationship that he was HIV positive what she would have done; whether she would have still had sex with him she said “no” and that she’d be upset and stop talking to him. It is important to note that Ms. Garcia did not ask Complainant A whether or not she still would have had unprotected sex with Mr. Ralph had she known he was HIV positive.

[178] In cross-examination Complainant A was questioned more on her response to the question posed by Ms. Garcia as to whether or not she would have had sex with Mr. Ralph if she had known that he was HIV positive. Mr. Proudlove put to her that her first response was “probably not” and he did not include her full answer which was “probably not, no”. I’m sure that was inadvertent but in any event Complainant A said that the response “probably not” was accurate and that she “most likely” wouldn’t have had sex with Mr. Ralph if he had told her that he was HIV positive and that if she did she would “probably use condoms”. She was then asked if she might have had sex with him and she said the answer depended on her mood.

[179] At this point Complainant A was clearly having difficulty answering the questions and she said “I don’t know how to say it”. She said she didn’t know right now and all she could say is probably not and that it would have to be at the moment. She went on to say that if Mr. Ralph told her the first time they met then she would not have had sex with him and just stayed as friends. When Mr. Proudlove pointed out that they didn’t have sex the first time they met on her evidence and that they had hung out for a few times before they had sex. Complainant A repeated that if she knew Mr. Ralph was HIV positive she wouldn’t have had sex with him. At this point her response was very definite and certain. When Mr. Proudlove challenged her on the certainty of this response, given her earlier answers, she repeated that if Mr. Ralph had told her then she wouldn’t have had sex with him but continued to say that he didn’t tell her therefore she was not able to give an answer “right now”. She stated again that she wouldn’t have had sex with him if he told her before they had sex. In re-examination Complainant A confirmed again, if on that first night when she asked Mr. Ralph if he had anything he told her he had HIV, that she wouldn’t have had sex with him.

[180] In answer to the question approved on the s. 276 application, Complainant A said that before she knew she was HIV positive in January 2011 she had never engaged in sexual intercourse be it vaginal, anal or oral with someone she knew was HIV positive or someone she believed was HIV positive.

[181] Mr. Proudlove asked Complainant A if she was concerned about herpes or catching anything when she was in the stairwell passing the marijuana cigarette back and forth with Mr. Ralph the first day she met him. She responded that she was not concerned and she denied that this was risky behaviour that attracted her. She just did it and didn’t stop to consider it.

[182] I have considered Complainant A’s evidence that she asked Mr. Ralph if he had “anything” before she had sex with him. I reject Mr. Ralph’s evidence denying this as it was part of his overall fabrication. Given my overall impression of Complainant A, I conclude that she did ask this question of Mr. Ralph and as I have already found, he did not tell her that he was HIV positive. In any event, as I have already stated, the onus was on Mr. Ralph, not Complainant A.

[183] As I did with Complainant B, I have considered the fact that although Complainant A took this step, she did agree to unprotected sex soon after the first time she had sex with Mr. Ralph. That is risky behaviour as was the fact that she was not using birth control. However, as I have already found, I do not find this significant as it does not mean that Complainant A would have engaged in unprotected sex if Mr. Ralph had told her that he was HIV positive.

[184] I have considered all of Complainant A’s evidence on this issue and in particular the evidence she gave during her cross-examination. On the surface one could say that she was not firm in her response that she would not have had sex with Mr. Ralph had she known that he was HIV positive. However, she was not asked directly whether or not she would have agreed to unprotected sex with Mr. Ralph had he told her he was HIV positive. That is the precise question that the Crown must prove beyond a reasonable doubt. It is significant that when she was pressed by Mr. Proudlove, Complainant A stated that if she had agreed to have sex it would probably have been with a condom. Although that would still have put her at risk given Mr. Ralph’s viral loads at the time, obviously the question is very different whether or not one is talking about protected or unprotected sex. There is also the fact that I have found that Complainant A was concerned enough about STDs to ask Mr. Ralph if he had “anything”.

[185] It was also clear to me when Complainant A was answering the questions that she was having difficulty in putting herself back in time and place to when she first became intimate with Mr. Ralph. As she was found to be HIV positive in early January 2011, she no doubt knows a great deal more about HIV and AIDS than she did back in November 2010. I believe that this explains many of her answers to these questions.

[186] Considering all of the evidence and having accepted Complainant A’s evidence that she did not find out that Mr. Ralph was HIV positive January 1, 2011, that she asked him if he had “anything” before she had sex with him the first time, that the first time at least she and Mr. Ralph used a condom, and the fact that soon thereafter Complainant A and Mr. Ralph regularly had sex without a condom, I am persuaded beyond a reasonable doubt that Complainant A would not have had unprotected sex with Mr. Ralph had he informed her beforehand of his HIV positive status. For these reasons I find Mr. Ralph guilty of Count # 1.

What aggravating facts if any has the Crown proven beyond a reasonable doubt with respect to the admitted assault and forcible confinement of Complainant A by Mr. Ralph on January 1, 2011?

[187] As already stated in light of Mr. Ralph’s evidence, Mr. Proudlove conceded that he has no defence to the charges of assault and forcible confinement of Complainant A. Ms. Garcia advised that she would like certain findings of fact to be made to establish aggravating features of these offences for the purpose of sentencing. Accordingly it is necessary to consider the evidence, bearing in mind that the Crown must prove these aggravating features beyond a reasonable doubt if I am to rely on them for the purpose of sentencing.

[188] Complainant A gave some evidence about her relationship with Mr. Ralph. She testified that Mr. Ralph had a temper and that if she wanted to go home to her mother he would get mad. They would argue about that and he would tell her not to go. She’d either end up staying or have sex with him to resolve the argument. Complainant A testified that she was rarely out on her own; she felt like Mr. Ralph didn’t trust her.

[189] On New Year’s Eve of 2010, Complainant A and Mr. Ralph went to Nathan Phillips Square. It was just the two of them and Complainant A testified that everything was OK. She had brought alcohol along with her. They got back to Mr. Ralph’s place at around 3 a.m. Complainant A testified that she woke up about 6:30 a.m. with a hangover and she could not sleep. Mr. Ralph was still sleeping. She was texting her friend Shelley. Complainant A wanted to go to her sister’s birthday party that day as her sister was turning 16. The plan was to leave and go to her mother’s to get ready. Complainant A testified that she woke Mr. Ralph up and told him she was going home. He told her that she wasn’t and that it was too early and they started arguing at that point. It was about 7 a.m. by this time.

[190] Complainant A testified that Mr. Ralph wanted to have sex but she did not and she told him that. When she tried to get her pants on he grabbed her wrists. He was getting madder and she saw a side of him that she had never seen before. They kept arguing and things got more violent. She was on the bed and when she tried to get up Mr. Ralph slapped her on her cheek. It wasn’t that hard. She was crying and she told Mr. Ralph “that’s it, I’m done; I’m leaving”. He then said he was sorry. When she tried to leave he put his hand out by the door and said she was not going anywhere. She was trying to push him away but gave up. He was still angry. She didn’t think Mr. Ralph did anything else and if he did she couldn’t remember.

[191] Complainant A watched her video statement in court to see if that would refresh her memory as she gave a statement to police later that morning when her memory was fresher. It did not refresh her memory but she testified that when she spoke to police she was being honest. In her statement she testified that Mr. Ralph choked her when she was sitting on the bed and they were arguing back and forth. She was then specifically asked by the Crown about the fact that in her statement she said that Mr. Ralph choked her. There was no objection to this question. When Complainant A was asked if this helped her remember she said that it happened; referring to Mr. Ralph choking her, when they were arguing back and forth about her being on the phone. She did not explain how he was choking her.

[192] Complainant A testified that she tried to call 911 on her cell phone because she figured that the only way she would be able to leave is to call the police so they would come and escort her out. She said that she was on the couch when she first called 911. She was still there when they called back but she didn’t answer. She did not tell Mr. Ralph that she was calling 911 as she didn’t want him to know. Mr. Ralph grabbed her phone and threw it against the wall but the phone did not break. She got her phone back and Mr. Ralph was sitting on the couch and she was now on the bed about four to five feet away. Complainant A testified that she had her phone on silent and saw the unknown number calling message come up but she didn’t answer because they were arguing and it said unknown number. Apparently that was in fact a call back from 911.

[193] The 911 calls made by and to Complainant A were played during her evidence and I have listened to them again. Complainant A testified that the voices heard are hers and Mr. Ralph’s and that she is the one who dialed 911. She said that the phone disconnected when Mr. Ralph was trying to grab the phone and take it from her. The first call to 911 was disconnected almost immediately before Complainant A says anything. 911 then called Complainant A and she can be heard crying hysterically and whatever she was saying is intelligible. This call was also disconnected very quickly. Complainant A answered the third call, and she was talking and Mr. Ralph can be heard in the background but what they were saying is intelligible. The call then went to Complainant A’s voicemail, I presume because it was disconnected. The fourth call from 911 also went to voicemail. The fifth call was answered and clearly Complainant A was still very upset. She was asked where she was and she told the 911 operator that she did not know, that it was not her address and that “he won’t leave me alone”. Mr. Ralph can be heard in the background and they are arguing. Complainant A tells him “no” and then the phone is disconnected again. The final call is answered and Complainant A is still crying hysterically and saying “please don’t, don’t”. The phone is then disconnected. At 8:56 a.m. the radio call went out to police. Officer Berdoold described it as a hotshot or priority call. The 911 call must have been made shortly before then.

[194] Because Complainant A did not give an address 911 had to use her cell phone to try to locate her. They asked for a trace and determined an address of 3028 Weston Road using GPS and Officer Berdoold went to that general area. In cross-examination Complainant A was challenged on the fact that during the 911 call she told the operator that she did not know where she was. She insisted that she didn’t know the address despite being with Mr. Ralph for six to eight weeks every day and night. She explained that she had never paid attention to the address, that she had not had mail sent there and she didn’t need to know the address in order to take the bus. She did leave the house but she didn’t pay attention to the house number. Complainant A said she’s bad at addresses but knows where she needs to go. She would take the Wilson bus to get back to Mr. Ralph’s and could remember the bus stop, what the bus stop was near and what the house looked like. Complainant A thought she had told the 911 operator that she was on Weston Road but she wasn’t sure. In fact she did not even give the street name although she did know that Mr. Ralph’s address was on Weston Road. She denied lying to the 911 operator.

[195] I accept Complainant A’s evidence that she did not know the street number for Mr. Ralph’s house. I appreciate that she had been essentially living there for almost two months but as she pointed out she did not have mail delivered there and she knew how to get there by bus without knowing the number. In those circumstances I find her evidence is credible. Mr. Proudlove cross-examined Complainant A on the basis that she could have looked at the number on the door when she was on the phone with 911 but it is clear from the calls that she was still inside with Mr. Ralph.

[196] It is puzzling, however, that Complainant A did not tell the 911 operator that she was on Weston Road as she knew that but I do not find that her failure to do so adversely impacts her credibility. The 911 calls make it very clear that she was hysterical and I do not accept the submission that at least while she was still being kept inside the apartment that she did not want police to come. Complainant A testified that she wanted the police to come and escort her out but she didn’t want anything to happen “not like that;” she wanted to get Mr. Ralph off her back so she could leave but she didn’t want him to get into trouble. She was on the phone to her friend Shelley when police arrived but by then she was outside on the sidewalk and Mr. Ralph was not close. She was still upset, given the evidence of the officers, but she had accomplished what she wanted the police to help her with, and as she stated she was not looking to get Mr. Ralph into trouble. The fact that once Complainant A was outside that she might have been ambivalent about seeking the help of police is not surprising. As for her failure to say she was on Weston Road, in the seconds that she was connected to the 911 operator, she was not specifically asked if she knew what the street was so she did not lie to the operator; she only failed to volunteer this information. I am not prepared to find that this failure to volunteer that she was on Weston Road, given her emotional state, adversely impacts her credibility.

[197] Complainant A testified that there was only one door out of Mr. Ralph’s room. It led into the kitchen and there was another door to open and then you needed to go up the stairs to get out a door at the back of the house that took you into the backyard. Every time she went to the door Mr. Ralph blocked her. She denied hitting him but said that she did push him when he grabbed her wrists and that when he grabbed her wrists a second time she isn’t sure if she pushed him again. She denied being stronger than Mr. Ralph. Complainant A also denied Mr. Ralph demonstrating concern because she was still intoxicated or that he was worried about her leaving.

[198] Mr. Ralph testified that early the morning of January 1, 2011, he was very, very drunk and hungover and sleeping. He woke up to find Complainant A kissing him and trying to get him in the mood for sex. He asked her to let him sleep and she kept pressing him for sex. This lasted a “good while”. Eventually she flicked her hand at him and he felt blood in his mouth. This caused him to jump up and ask her why she “busted” his mouth. Complainant A was lying on the bed and he tried to hold her two palms so he could give her a slap to let her know that what she did was “very bad”. He hit her and then they were fighting. Mr. Ralph admitted to hitting Complainant A but said he did so after she hit him; I presume a reference to her “busting” his mouth. This version of events was not put to Complainant A. I accept that she might have accidently hurt his mouth in the struggle over the phone but there was no evidence that Mr. Ralph had any injuries to his lip when he was paraded before the booking officer nor did he tell the officers this when he was asked about injuries. As for Complainant A wanting to have sex with him, that seems to be at odds with the fact she was hung over.

[199] Mr. Ralph testified that Complainant A called Shelley to tell her that he had hit her and her friend was telling her to leave, call the cops and “scream the house down”. He said that he could hear this because the phone was on speaker. According to Mr. Ralph, Complainant A was screaming the house down and they were screaming at each other. This evidence I do accept.

[200] Mr. Ralph testified that he was afraid that Complainant A would call the cops and was trying to get the phone from her. He kept trying to get the phone from her and threatened to smash the phone. Mr. Ralph admitted telling Complainant A that she was not going anywhere and struggling to take the phone from her which he threw on the floor. He admitted to slapping her a second time but he said he did not choke her. He also admitted that he knew that Complainant A was trying to leave, that he didn’t want her to, that he took the phone from her again and that he was not going to allow her to leave. This would explain why the calls to and from 911 kept disconnecting.

[201] Mr. Ralph denied the fight went on for two hours. I accept that at least the violent part of the fight must have started closer to the time Complainant A called 911.

[202] According to Mr. Ralph, he didn’t want Complainant A to leave because she was so drunk that it wasn’t safe. However, he also said that he was very jealous and angry and wanted to see if Complainant A was really going to her sister’s party or was going to see guys. Mr. Ralph admitted that he tried to block the door and that he was watching Complainant A so she wouldn’t walk out on him. He let her go to the bathroom but not by herself because obviously she was going to call the cops and he had to avoid that. When he “gave her the privilege” of calling Shelley she “double-crossed him” and called the cops. He heard Complainant A trying to give the police the address and testified that he heard numbers like 2800 or 3200. He asked her if she really knew what she was doing. She told him the police were coming. He asked her to call the cops back and tell them not to come but she said she couldn’t. This reinforces my view that at least while Complainant A was still being confined by Mr. Ralph inside his room that she wanted the police to come.

[203] After the calls Complainant A testified that she told Mr. Ralph that she was not going to go to her mother’s and wanted to talk and work things out. She asked to go outside for a cigarette. She got her track pants and flip flops on. She was not wearing socks. This was to make Mr. Ralph think she wasn’t going to leave. He calmed down and they went out for a cigarette. He went back in to get a lighter. He came after her and she got onto the main road. She saw a police car and according to Complainant A she flagged the police down by waving her arms so they would stop. She was crying and on her phone at this point with her friend Shelley. When asked why she didn’t call 911 back she said she wasn’t thinking. She admitted that she didn’t want to get the police involved; she wanted to go home.

[204] Mr. Ralph essentially confirmed most of this evidence although he said that Complainant A went ahead and did not wait for him. When he got out of the house he saw her close to the road and could see a police car close to her. After he was arrested he never saw her again.

[205] Officer Berdoold was first on scene and he arrived around 9 a.m.. He observed a female visibly crying on the sidewalk outside of 3022 Weston Road. He also saw a male at the same address near the garage of the residence. Officer Berdoold was not sure if Complainant A had flagged him down or not. He is the officer who spoke to Complainant A while other officers who responded to the call proceeded to arrest Mr. Ralph. He and Officer Donison testified that they observed Complainant A to be distraught, upset, and crying. I accept this evidence which was not challenged and is confirmed by the 911 calls.

[206] It is significant that Complainant A did not try to exaggerate the physical aspects of the fight or her injuries. She testified that Mr. Ralph did not slap her hard and that she had red marks on her arm and wrists from Mr. Ralph pulling her but that they only lasted about a half an hour. She told police medical assistance was not necessary. None of the officers testified about observing any injuries.

[207] In light of this evidence I find beyond a reasonable doubt that when Complainant A woke up on the morning of January 1, 2011 she wanted to leave. Given that the 911 call was made just before 9 a.m. and in light of what Complainant A described was happening I find that the fight, at least the physical portion, was shorter than two hours. Given the noise they were making I also expect that they would have woken up others in the house if the fight had gone on as long as two hours.

[208] I do not accept Mr. Ralph’s evidence that he did not want Complainant A to leave because it was early or because she was intoxicated. Given that the police officers did not observe obvious signs of intoxication, I believe that it was Mr. Ralph’s jealously that was motivating him. Considering all of his evidence it is clear that he was suspicious about whether or not she was really going to go to her mother’s and then her sister’s birthday party. When this was put to him in cross-examination he stated “of course”. I also find that Mr. Ralph asked for sex and that Complainant A refused and that this is another reason why he did not want her to leave. He testified that she had never wanted to “leave him like that” before.

[209] Mr. Proudlove submitted that Complainant A’s evidence about what happened on January 1, 2011 was internally inconsistent but I disagree. I find that Complainant A did not deliberately strike Mr. Ralph first but I do not reject his evidence that something she did caused his mouth to bleed. It seems that there was a bit of pushing back and forth by Complainant A’s own admission as she was trying to leave and Mr. Ralph was trying to hold her back. I also find that Mr. Ralph struck Complainant A as she alleged, and he admitted, twice. As for the alleged choking, although I believe that in the struggle it may have seemed to Complainant A that Mr. Ralph was trying to choke her; perhaps his arm crossed her neck as he was trying to grab the phone, I do not find that he did so deliberately. First of all if he had really tried to choke her, I expect that Complainant A would still have remembered this, certainly after refreshing her memory by reading her statement. The way her evidence was given, essentially by pointing out specifically what she had told police, did not give Defence any opportunity to cross-examine as it was quite clear that she really did not have a present recollection about this. Furthermore, Complainant A did not complain about any marks to her neck, only her arms nor did the officers note any.

[210] Ms. Garcia also submitted that it was relevant that Mr. Ralph was dating women who were vulnerable and younger and that he likes the fact that he could give them drugs and alcohol which they wanted. It certainly seems that in the case of both Complainant A and Complainant B that Mr. Ralph was looking for younger women but I do not have enough information to conclude that this was a deliberate choice because they were vulnerable. He liked to smoke weed and get high and have sex and that is essentially what he was looking for and what he got. In my view this is not relevant to the issues in this case.

[211] These facts will be considered on sentencing. Given the evidence of Complainant A and Mr. Ralph, I find that the Crown has proven beyond a reasonable doubt that he assaulted Complainant A and unlawfully and forcibly confined her as alleged in Counts # 2 and 3.

Disposition

[212] For these reasons as I advised orally on March 10, 2014, I found Mr. Ralph guilty of the following offences:

(a) aggravated sexual assault of Complainant A contrary to s. 273 of the Criminal Code; Count # 1;

(b) unlawful confinement of Complainant A contrary to s. 279 of the Criminal Code; Count # 2;

(c) assault of Complainant A contrary to s. 266 of the Criminal Code; Count #3; and

(d) aggravated sexual assault of Complainant B contrary to 273 of the Criminal Code; Count # 4.

SPIES J.

Released: March 14, 2014

COURT FILE NO.: 4-180/12

DATE: 20140314

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and -

STEVE ALPHONSO RALPH

Defendant

REASONS FOR JUDGMENT

SPIES J.

Released: March 14, 2014

[^1]: Some of this chronology is based on Mr. Ralph’s records with TPH. Some of the nurses who made entries in the records were called as witnesses by the Crown to speak to the records. They each confirmed the accuracy of their own records and the fact that they relied on the accuracy of the records of the nurses made before them for a history of the client and that they are required as nurses to be very accurate in their note-taking as this is required by TPH and the College of Nurses of Ontario which is the professional regulatory body for registered nurses. The practice is that the notes are made when the contact with the client occurs or very shortly thereafter. Initially the Defence raised a concern about the admissibility of the notes particularly where the nurse who made the notes was unavailable to testify. There was no issue with the authenticity of the other records in the TPH records such as HIV test results. Ultimately it was conceded that the records are admissible and can be relied upon as being authentic and that the notes are accurate in terms of what the nurses recorded. There was however no admission that the contents of the notes is true.

[^2]: 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371.

[^3]: 2012 SCC 47, [2012] S.C.J. No. 47, at para. 100.

[^4]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[^5]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13.

[^6]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.).

[^7]: R. v. J.H.S., supra at para. 9.

[^8]: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23.

[^9]: R. v. H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 at p. 155 (BCCA).

[^10]: 2011 ONCA 51 at para. 114.

[^11]: 2008 SCC 56, at paras. 30-31, 38.

[^12]: (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.).

[^13]: 2013 ONCA 744.

[^14]: 2014 ONSC 1072.