COURT FILE NO.: 4-180/12

DATE: 20140606

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: April 7, May 6 and 23, 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proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.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.

REASONS FOR SENTENCE

Overview

[1] On February 3, 2014, at the commencement of the trial, the Defendant Steve Ralph pleaded guilty to the aggravated sexual assaults of Complainant D; Count # 5 and Complainant C; Count # 6, contrary to s. 273 of the Criminal Code. Based on the admitted facts I found Mr. Ralph guilty of both counts. Mr. Ralph pleaded not guilty to the remaining counts.

[2] On March 7, 2014, following the trial before me, I convicted Mr. Ralph of the following offences:

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

(b) forcible 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 s. 273 of the Criminal Code; Count # 4.

[3] I gave reasons for my decision on March 14, 2014; see R. v. Ralph, 2014 ONSC 1376. Mr. Ralph is now before me for sentencing on all convictions.

The Facts

(a) Circumstances of the Offences

[4] A summary of the circumstances of these offences, relevant to sentencing, is as follows.

[5] Mr. Ralph was diagnosed as being HIV positive in May 2003. As a result, beginning in June 2003, Mr. Ralph had a number of conversations with nurses from Toronto Public Health (TPH) during which he was counselled about HIV transmission, safer sex measures and about obtaining informed consent from sexual partners. He was 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. Later in 2003, Mr. Ralph was also counselled by staff at St. Michael’s Hospital about safer sex practices and about informing sexual partners or potential partners about his HIV status.

[6] In August 2007, Mr. Ralph was diagnosed with pneumocystis pneumonia (“PCP”), an AIDS defining illness. Mr. Ralph testified at trial that he had totally forgotten that he was HIV positive until he got sick in August 2007. I did not believe this evidence. In August 2007 Mr. Ralph was counselled again by a TPH nurse on the spread of HIV infection through oral and vaginal intercourse, on the need to inform his sexual partners prior to sexual acts, of his HIV positive status and on the need to use condoms.

[7] Mr. Ralph’s relationships with Complainant B and then Complainant A were both in the period after his “flashback” in August 2007 when he “remembered” that he was HIV positive. However, even after Mr. Ralph was diagnosed with PCP, something he admitted was an AIDS defining illness, he continued to tell the nurses at TPH even as late as the end of February 2008, that he only had a “little HIV”. In the period August 2007 to February 2008 Mr. Ralph was again counselled by TPH about his HIV status and what his obligations were.

[8] I found that after August 2007 Mr. Ralph continued to minimize and downplay his HIV status which, in fact, was now considered AIDS. He continued to ignore the advice he received from TPH. There could be no doubt, given the number of times that Mr. Ralph was counselled that he understood the information he was being given. However he chose to believe what he wanted to believe; namely that he would not likely infect the complainants, because that way he was able to carry on as he had always done. I did not find that Mr. Ralph intended to infect any of the complainants but he was extremely reckless in that regard, having no regard to the risks he must have known that he was exposing them to. This is particularly true with respect to Complainant A and Complainant B who were in relationships with Mr. Ralph after August 2007.

Facts in Relation to Complainant C (Count #6)

[9] Mr. Ralph was in a relationship with Complainant C for two years, commencing in 2003. During that time they had sex on a regular basis; sometimes without condoms and sometimes using condoms. After Mr. Ralph was diagnosed as being HIV positive he did not tell Complainant C that he was HIV positive prior to resuming sexual intercourse with her. Mr. Ralph’s position is that he eventually told Complainant C that he was HIV positive and the Crown agreed not to seek to prove otherwise. Mr. Ralph admitted having unprotected sexual intercourse with Complainant C on a number of occasions during their relationship prior to informing her that he was HIV positive. Fortunately Complainant C has not tested positive for the virus.

Facts in Relation to Complainant B (Count #4)

[10] Mr. Ralph was in an intimate long term relationship with Complainant B between March 2008 and August 2010; a period of almost two and one half years.

[11] It was Mr. Ralph’s evidence that he informed Complainant B that he was HIV positive before he had sexual intercourse with her but I did not accept that evidence and relied on the evidence of Complainant B to the contrary. They regularly had unprotected sex throughout their relationship.

[12] Unfortunately Complainant B tested positive for the HIV virus in January 2011. The Crown alleges that Complainant B contracted the HIV virus from Mr. Ralph and relies on this as an aggravating factor on sentencing. This is disputed by Mr. Ralph and is an issue to be determined on this sentencing.

Facts in Relation to Complainant D (Count #5)

[13] Complainant D met Mr. Ralph in 2007 or 2008 through Complainant B, who Mr. Ralph was dating at the time. Complainant D and Mr. Ralph had sexual intercourse on two occasions in July of 2009. Mr. Ralph agreed to use a condom on both occasions.

[14] Mr. Ralph admitted that he did not inform Complainant D that he was HIV positive prior to engaging in sexual intercourse with her. Fortunately Complainant D has not tested positive for the virus.

Facts in Relation to Complainant A (Counts #1, 2, and 3)

[15] Complainant A was 21 and going into Grade 11 when she met Mr. Ralph at the Albion Mall in August 2010. Mr. Ralph was 33.

[16] Mr. Ralph was in an intimate relationship with Complainant A between August 2010 and January 1, 2011, which is when he was arrested for these offences. 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 soon after they met. I accepted Complainant A’s evidence that before she first had sex with Mr. Ralph she asked him if he had “anything”. She was thinking of sexually transmitted diseases and “stuff like that”. He said “no”. Once Mr. Ralph got out of jail in November 2010 she got into a serious relationship with him; he was her boyfriend.

[17] I did not accept Mr. Ralph’s evidence that he advised Complainant A that he was HIV positive. They had sexual intercourse regularly throughout the relationship and for the most part Mr. Ralph did not wear a condom.

[18] Unfortunately Complainant A tested positive for the HIV virus in January 2011. The Crown alleges that Complainant A contracted the HIV virus from Mr. Ralph and relies on this as an aggravating factor on sentencing. This is denied by Mr. Ralph and is an issue to be determined on this sentencing.

[19] The convictions for assault and unlawful confinement arise out of an incident that occurred in the early morning of January 1, 2011. I found that when Complainant A woke up that morning she wanted to leave and that Mr. Ralph did not permit her to because he was suspicious about where she said she wanted to go and she had refused to have sex with him. During the fight that ensued there was a bit of pushing back and forth as Complainant A was trying to leave and Mr. Ralph was trying to hold her back. I found that Mr. Ralph struck Complainant A twice; he slapped her but not hard. Complainant A did not suffer any injuries although she had red marks on her arm and wrists from Mr. Ralph pulling her that only lasted about a half an hour. I did not find that Mr. Ralph choked Complainant A as she alleged although his arm may have crossed her neck as he was trying to grab her phone. I found that Complainant A did not deliberately strike Mr. Ralph first but I did not reject his evidence that something she did caused his mouth to bleed.

b) Circumstance of the Complainants

[20] I did not receive a Victim Impact Statement from Complainant A, Complainant B or Complainant C, although I am advised that Complainant A wanted to prepare one. Having heard her testify it does not take a lot of imagination to have some idea of the hardships she has faced since her diagnosis of being HIV positive.

[21] Complainant B had the courage to read her Victim Impact Statement to me in court. It was clearly important to her that she do so and I hope it brings her the closure she seemed to be looking for. I commend her for her strength of character; her courage and commitment in dealing with her HIV positive status and making her statement in person. It was very moving.

[22] Complainant B told me how she first felt when she was told that she should be tested for the HIV virus. She said that the week of waiting almost killed her and when she found out she was HIV positive she said “a part of me died”. She suffered from nightmares and had thoughts of hurting herself. Fortunately she was strong enough to check herself into a hospital and realized that she had to learn how to deal with her HIV positive status. Remarkably she stated that now she has realized that HIV has actually changed her for the better. She does everything expected of her in terms of her diagnosis because she knows in the long run it will keep her healthy. She lives with guilt and a lot of anger because she feels she should have been more responsible to prevent this from happening. She is terrified of what people think when they find out her status. She confirms the fact there is still a stigma related to HIV. She describes the process as a roller coaster ride, both mentally and emotionally challenging. She used her Victim Impact Statement as a means to speak directly to Mr. Ralph telling him “goodbye” and surprisingly that she had managed to forgive him so that she could live in peace. Complainant B has clearly turned a significant corner in her life and notwithstanding the challenges of HIV, is ensuring that something good has come from this experience. I wish her and the other complainants well.

c) Circumstances of Mr. Ralph

[23] A Pre-Sentence Report (“PSR”) was provided to the court. The information about Mr. Ralph’s background as contained in the PSR can be summarized as follows.

[24] Mr. Ralph is now 37. He was born in St. Vincent and is the eldest of four children. He came to Canada in August 1999 and is currently a landed immigrant. He resided with his aunt here for a number of years. His partner from St. Vincent joined him in 2000. They have one son aged 16. In 2006 Mr. Ralph’s spouse was deported and their son went back with her to St. Vincent.

[25] Mr. Ralph’s parents continue to reside in St. Vincent but have been separated since he was 15. He has two sisters who also remained in St. Vincent with whom he claims to have good relations. His younger brother lives in Canada and also has a criminal record. According to Mr. Ralph, his brother stabbed their mother and burnt the house down although she survived. He did not say when this happened but I assume it was in St. Vincent. Mr. Ralph has not had any communication with his brother for about a year.

[26] Growing up Mr. Ralph’s family was very poor. He experienced physical and emotional abuse from his father and witnessed his father violently abuse his mother. Nevertheless he loves both parents and maintains ties with them.

[27] Mr. Ralph completed 10th Grade in St. Vincent which is like a Junior High School. He did not go to Senior High. In Canada he has had no long term employment save for some employment as a forklift truck operator. Most of his work was odd jobs of short duration. He has mostly supported himself on welfare and more recently payments from the Ontario Disability Support Program (ODSP). I was advised he is on ODSP as a result of his diagnosis of AIDS.

[28] Mr. Ralph has no substance abuse problems although he smokes marijuana regularly. Mr. Ralph does admit that he sold marijuana for financial gain.

[29] Mr. Proudlove objected to certain aspects of the PSR. In one of the leading cases he referred me to; R. v. Rudyk (1975), 1 C.R. (3d) S-26 (NSCA), at p. S-31, Chief Justice MacKeigan said:

I would urge that a pre-sentencing report be confined to its very necessary and salutary role of portraying the background, character and circumstances of the person convicted. It [PSR] should not, however, contain the investigator’s impression of the facts relating to the offence charged, whether based on information received from the accused, the police or other witnesses, and whether favourable or unfavourable to the accused. And if the report contains such information the trial judge should disregard it in sentencing.

[30] Mr. Proudlove submitted that it was not necessary or appropriate for the probation officer to contact Complainant B, that the information obtained from Complainant B goes to the circumstances of the offence and was “irresponsibly included in the report”. I agree with Mr. Proudlove that the probation officer should not have contacted Complainant B. I have ignored the information that he obtained from her; I have her Victim Impact Statement. The probation officer also contacted the original police officer who processed Mr. Ralph and again this was not appropriate in that he obtained the officer’s belief about these offences and other matters that were not even before the court. Accordingly I have ignored the information provided by that officer as well.

[31] On this basis Mr. Proudlove also objected to the fact that the probation officer who authored the PSR did not seem to appreciate that Mr. Ralph would have been advised not to talk about the offence before the court. I, therefore, did not take into account the author’s impression that Mr. Ralph was “evasive” with providing additional details of the circumstances or the fact that the probation officer did not believe he was convincing in his concerns about the damage he has caused others.

[32] There are additional comments in the PSR that are not supported by the evidence. For example, the probation officer refers to Mr. Ralph as a repeat offender with “serious and violent offences”. None of his offences were “violent” save for his assault of Complainant A. These were not the type of sexual assaults that are considered inherently violent.

[33] The one conclusion that Mr. Proudlove did not argue with was the probation officer’s impression that Mr. Ralph may be emotionally immature; for example, in light of his non-recognition of his inappropriate behaviour and to the extent he has damaged the lives of others.

[34] Given these concerns with the contents of the PSR, the probation officer’s assessment was necessarily flawed as well so I have decided to disregard it. For these reasons the PSR was not as helpful as it should be.

[35] Mr. Ralph has one prior entry on his criminal record. He was convicted of criminal harassment and failure to comply with recognizance in August 2010. He received a sentence of 35 days and 18 months’ probation following 25 days of pre-sentence custody. Ms. Garcia had ordered a transcript of the proceedings in the Provincial Court which was not available until May 5, 2014. It was provided to me with the consent of Mr. Proudlove. The circumstances are that Mr. Ralph pled guilty to harassing Complainant B and to breaching his condition of house arrest. The admitted facts included the fact that Complainant B ended their relationship in March 2010 and from that time on Mr. Ralph consistently and deliberately tried to get back together with her despite her repeated pleas that he leave her alone. After repeatedly calling her, leaving voice mail messages for her and waiting for her by her home, he threatened to post sexually explicit photographs he had taken of the two of them, with her consent at the time, unless she came back to him. He presented a package of them to Complainant B’s mother on August 5, 2010. Complainant B saw some of these photographs taped to storefront windows, bus shelters and other locations near her home.

Legal Parameters

[36] The maximum sentence for aggravated sexual assault is imprisonment for life pursuant to s. 273 (2) (b) of the Criminal Code. There is no minimum. For the assault of Complainant A the maximum penalty is five years pursuant to s. 266(a) and for the offence of forcible confinement the maximum penalty is two years, pursuant to s. 279(2)(a).

Position of the Crown

[37] The Crown’s position on sentence is for a custodial term of no less than 16 years in custody, less the time already served. Ms. Garcia’s position presumes that she has satisfied me beyond a reasonable doubt that it was Mr. Ralph who infected Complainant A and Complainant B. She asks that the sentence be broken down as follows:

Count

Charge

Complainant

Date Range

Sentence

Aggravated S.A.

Complainant A

Nov. 1, 2010 –

Jan. 1, 2011

6 years

Forcible Confinement

Complainant A

Jan. 1, 2011

6 months

(concurrent to count 3)

Assault

Complainant A

Jan. 1, 2011

6 months

(concurrent to count 2)

Aggravated S.A.

Complainant B

Mar. 1, 2008 – Aug. 5, 2010

7 years

Aggravated S.A.

Complainant D

July of 2009

1½ years

Aggravated S.A.

Complainant C

Jan. 1, 2003 – Jan. 1, 2005

3 years

[38] This would result in a total sentence of 18 years. Ms. Garcia submits that the Court can apply the totality principle to arrive at a final sentence of 16 years.

[39] Ms. Garcia also requests certain ancillary orders:

(a) An order pursuant to s. 487.04 requiring that a sample of Mr. Ralph’s DNA be added to the databank;

(b) An order pursuant to s. 490.012 requiring Mr. Ralph to comply with the Sex Offender Information Registry for life, as he has been convicted of more than one designated offence;

(c) An order pursuant to s. 109 requiring that Mr. Ralph not have any weapons in his possession, as defined by the Criminal Code, for life;

(d) An order pursuant to s. 743.21 requiring that while in custody, the Mr. Ralph have no contact, directly or indirectly, with Complainant A, Complainant B, Complainant C or Complainant D and that he not contact any of Complainant B’s immediate family (as known to him).

Position of the Defence

[40] Mr. Proudlove had no objection with respect to the ancillary orders requested by the Crown save that he asked that the non-communication order delineate all the names.

[41] As for sentence, Mr. Proudlove submitted that a sentence of one year for the assault of Complainant D and a sentence of one and one half years for Complainant C is appropriate. He conceded that the aggravating factor in respect of Complainant C was the fact that the relationship went on for as long as it did. He submitted that it is accepted as a fact that at some point Mr. Ralph advised her of his HIV positive status. I note that this is Mr. Ralph’s position and that the Crown agreed not to dispute it so it is more precise to say Mr. Ralph’s position is not contested.

[42] With respect to Complainant A and Complainant B, Mr. Proudlove submitted that there is a significant discrepancy in the sentencing of cases where there has been transmission and cases where there has not. He argued that in any event the cases do not support the sentence being sought by the Crown.

[43] It is Mr. Proudlove’s position that the Crown did not meet its onus to prove transmission in this case and so his position as to sentence is on that basis. He submitted that the distinguishing features with respect to the offences related to Complainant A and Complainant B are the length of the relationship and the fact that they were both post-2007. Complainant B’s was the longest; longer than two years. Complainant A’s was shorter. Mr. Proudlove submitted that if causation is not proven with respect to Complainant A an appropriate sentence for Mr. Ralph on Count #1 is two years. If it is then he submitted the appropriate sentence is three years. He submitted the same sentences should be imposed in the case of Count #4 with respect to Complainant B.

[44] With respect to the forcible confinement and assault of Complainant A, Mr. Proudlove submitted 90 days for each offence consecutive to each other would be appropriate. He therefore conceded that a total sentence of six months for those two offences is reasonable.

[45] On this basis Mr. Proudlove submitted a total seven year sentence if there has been no transmission of the virus proven and a nine year sentence if I find that there has been which, on a totality principle, would be reduced to five to six or seven to eight years respectively depending on my findings.

[46] The disparity between the positions of counsel is significant on the aggravated sexual assault convictions even apart from the issue of transmission.

Case Law

[47] Both counsel provided cases to me dealing with sentencing in aggravated sexual assault cases in support of their respective positions although they both agreed that the range in sentence is significant. At one end of the spectrum, there is R. v. Murphy, [2005] O.J. No. 5649 (SCJ) where Fuerst J. imposed a conditional sentence (which is no longer available for these offences). At the other end of the spectrum there are cases where the sentences, particularly for a number of convictions and where some transmission has been proven, are in the high double digit range.

[48] No case is on all fours with the case before me. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find general principles to apply and similarities to the case before me, does assist in determining what an appropriate range is for sentence on the aggravated sexual assault convictions. I have carefully reviewed all of the cases of counsel but will refer only to the decisions that I found of most assistance.

[49] Both counsel acknowledged that the sentences in respect of each of the convictions of aggravated sexual assault should be consecutive and not concurrent but that the court should have regard to the totality principle articulated by the Supreme Court of Canada in R. v. M(CA) (1996), 1996 CanLII 230 (SCC), 105 C.C.C. (3d) 327 and as codified in s. 718.2 of the Criminal Code.

[50] Ms. Garcia relies on R. v. Felix, 2013 ONCA 415, [2013] O.J. No. 2857 (Ont. C.A.), where the Court of Appeal upheld a sentence of five years’ imprisonment less two and one half years’ credit for five counts of aggravated sexual assault and one count of sexual assault related to two complainants who did not contract HIV. This is a very helpful case in that it is the latest pronouncement from our Court of Appeal on sentencing in these cases.

[51] The offender in Felix was found guilty of one count of aggravated sexual assault in relation to one complainant; a single night of multiple acts of unprotected sex with a 16 year old – sentence two and one half years’ and four counts in relation to the other young woman, where there was vaginal intercourse once with a condom and then unprotected vaginal intercourse on four occasions over a three month period – sentence two and one half years’ each concurrent to each other but consecutive to the sentence of the first complainant. Other sentences imposed were also concurrent.

[52] On appeal the offender acknowledged that his global sentence of five years’ imprisonment less two and one half years’ credit for pre-sentence custody was within the appropriate range. He argued however, that the global sentence was harsh and excessive in all the circumstances. Cronk J.A. writing for the court, found at para. 69, that the appellant’s offences were very serious and endangered the lives of both complainants and led to devastating trauma for the complainants, both of whom had most of their lives still ahead of them. At para. 70 she also noted that the trial judge had emphasized that the appellant had deliberately disregarded warnings from healthcare professionals of the need to disclose his HIV positive status to his sexual partners and knowingly participated in unprotected sexual intercourse with both complainants without revealing his HIV status and manipulated both women for his own sexual gratification.

[53] At para. 71, Justice Cronk stated:

The appellant’s actions were callous and reflected a significant degree of indifference to the consequences of his actions for two women whom the trial judge found to be vulnerable, each in their own way. The fact that neither complainant actually contracted HIV is irrelevant. (Emphasis added)

[54] Although there were only two complainants, the Felix decision is very instructive in that the Court of Appeal upheld significant sentences where there was only one occasion of unprotected intercourse with one complainant and four with the other and neither were infected with the virus. There was no relationship with the first complainant and a fairly short one with the second. Like the case at bar both women were young and vulnerable. I recognize this is a case where deference would be shown to the sentencing judge and Justice Cronk did not say what the range is or should be for these types of cases. It is significant however, given the currency of this decision, that the court found that the sentence imposed was within the appropriate range.

[55] In an earlier decision of the Court of Appeal that Ms. Garcia referred to; R. v. Iamkhong, 2009 ONCA 478, [2009] O.J. No. 2446, the offender had repeated unprotected sexual intercourse with her husband while she knew she was HIV positive. Her sentence to two years’ imprisonment in addition to one year credit for strict pre-trial bail conditions was varied on appeal to two years’ imprisonment less one day due to immigration concerns. It was undisputed at trial that the appellant gave her husband HIV through repeated unprotected sex.

[56] Ms. Garcia submitted that in connection with Complainant A, Complainant B and Complainant C, an aggravating factor is that Mr. Ralph abused a trust relationship, relying on s. 718.2(a)(iii) of the Code. This was disputed by Mr. Proudlove. R. v. McGregor, [2008] O.J. No. 4939, also decision of our Court of Appeal, is of assistance on this issue. In that case Cronk J.A. speaking for the court stated;

S. 718.2(a)(iii) of the Code provides that the abuse of a position of trust in the commission of an offence is an aggravating circumstance on sentencing. The respondent did not occupy a traditional position of trust in relation to MM. However, any intimate relationship of the type entered into by the respondent with MM is based on a certain amount of trust and confidence, at least to the extent that each participant may reasonably expect that he or she will not knowingly be exposed by the other to a dangerous contagious disease; see for example, Cuerrier at para. 119. (at para. 30) Emphasis added, see also R. v. Williams, [2003 SCC 41](https://www.canlii.org/en/ca/scc/doc/2003/2003scc41/2003scc41.html), [2003] 2 S.C.R. 134 at para [57]

[57] Justice Cronk concluded that because the offender was MM’s boyfriend, and for the full duration of their 18 month relationship withheld information from her vital to her health and wellbeing, that he breached that element of trust that formed the basis of his relationship with her. This reasoning would clearly apply to all of the complainants in the case at bar save for Complainant D.

[58] The court in McGregor also acknowledged (at para. 39) that the authorities reflect a wide range of sentences in cases involving sexual intercourse and the non-disclosure of HIV positive status, and that absent a guilty plea by the involved offender or a joint submission on sentencing, the sentences imposed involve actual incarceration of some duration.

[59] As to the sentence appeal, Cronk J.A. stated the case called out for a custodial sentence. She accepted the trial judge’s findings that the offender’s actions were not wanton or calculated and that there was no specific planning, deliberate or wilful intent to expose MM to the risk of HIV on the two occasions of unprotected sexual intercourse that gave rise to the predicate offence. Cronk J.A. also accepted the finding of the sentencing judge that the offender did not engage in a pattern of violent or predatory behaviour and that the evidence established his general good character. Justice Cronk concluded: “these factors militate in favour of the imposition of a jail term at the lower end of the established range of sentences for this type of offence and offender.”(at para. 45). She set aside the conditional sentence imposed by the trial judge and substituted a custodial sentence of 18 months’ imprisonment reduced by six months for time served plus three years’ probation.

[60] Ms. Garcia also relies on a decision of this court; R. v. Walkem, [2007] O.J. No. 186 where Gans J. sentenced an offender who pleaded guilty to having unprotected sex with two women knowing he had tested positive for HIV, and without advising them of his condition. The offender who was then 26, had unprotected sex several times with the first complainant who was 18 years old and had been infected. Gans J. stated (at para. 10) that he was “told” that the complainant did not contract the virus early on in the relationship but towards its end. He held “[i]n fact, it is clear from the medical evidence that Mr. Walkem simply increased the chances of transmitting the Virus both from the frequency and nature of penetrative sex, namely by engaging in repeated acts of unprotected sex, including anal intercourse.” There was an agreed statement of facts, but Gans J. did not say that it was an agreed fact that the complainant was infected by the defendant; it seems that this was assumed and uncontested. The relationship with the second complainant, who was 26, was marginally more than a one night stand but occurred some 18 months after the offender learned that he had infected the first complainant with HIV. She tested negative.

[61] The defence was seeking a term of two years less a day with additional probation while the Crown sought a sentence of 6-8 years imprisonment. Gans J. noted that the offender’s deception was deliberate, calculated and continuing and that his actions were visited on multiple victims, in blatant disregard for the medical and legal advice received and under which he was morally and legally obliged to adhere. Gans J. imposed a sentence of three years with respect to the first complainant and 22 months consecutive with respect to the second complainant.

[62] Justice Gans referred with approval to what was then a recent decision of M. Green J. of the Ontario Court of Justice in R. v. Williams, 2006 ONCJ 484, [2006] O.J. No. 5037, where the court concluded that the range of sentences for cases involving HIV unprotected intercourse run from a low of one year to a high of 11 years. He noted that the court in Williams also found that the broad range of sentence reflects a variety of aggravating and mitigating factors, “…including the number of partners involved, the frequency of exposure, the criminal antecedence and contrition, if any of the defendant, and the impact on the complainants, particularly whether or not there was HIV transmission.” (Williams at paras. 19-24; Walkem at para. 22) Although as I will come to the range of sentence may even be broader than that identified by Justice Green, the factors he noted are clearly among those to be considered.

[63] Mr. Proudlove relies on a recent decision of this court by MacDonnell J.; R. v. Thomas, 2012 ONSC 1201. Over the course of a five year relationship the offender engaged in unprotected sexual intercourse with the complainant which continued after he was diagnosed with HIV. Despite being counselled by TPH the offender failed to advise the complainant or use a condom and he continued on as before. Justice MacDonnell had convicted him of attempted aggravated assault because even though there was no doubt that he was the source of the complainant’s infection he might have infected her before he became aware of his HIV status (at para. 9). MacDonnell stated this: “… callous course of conduct was a shocking breach of trust.” (at para. 14). MacDonnell J. found the cases of McGregor and Iamkhong from the Court of Appeal to be of great assistance and he referred to them at length. His decision pre-dated the Felix decision. He imposed a sentence of two years less a day.

[64] There is also an earlier decision of this court, R. v. DeBlois, [2005] O.J. No. 2267, where the offender pleaded guilty to attempted aggravated sexual assault. He was noted to be very remorseful but had had considerable difficulties with the law and had failed to inform his partner that during the relationship he had been diagnosed with HIV. He ignored the advice of the Health Unit and a s. 22 Order but had references, a positive PSR and had taken steps to rehabilitate himself. The court found that he had essentially been in “jail” for a year given his bail conditions and sentenced him to a further three years.

[65] I was also referred to a number of cases from out of province. Ms. Garcia submitted that the two decisions of the British Columbia Supreme Court of R. v. Nduwayo, one reported at [2006] B.C.J. No. 3396 and the other at [2010] B.C.J. No. 2084, are the closest to the facts of this case. These two trial decisions involve the same offender and complainants as it appears that on appeal the matter was sent back for a new trial. The sentencing judges in these cases were dealing with seven complainants but only five convictions of aggravated assault; three were infected by the offender and two were not. The offender in that case actively resisted condoms.

[66] In Nduwayo #1, for two of the three complainants who were infected with HIV, the sentence was six years in each case. It is significant, as Mr. Proudlove pointed out, that in the case of the third complainant who was HIV positive; DD, the court had found that she might have been infected by someone else or some other means. She had only had unprotected sexual intercourse with the offender once. The sentence imposed in her case was two years. For the two complainants who were not infected the sentence was three years for the complainant where there were only two occasions of unprotected sexual intercourse and two years for the complainant where there was only one occasion of unprotected sexual intercourse. The sentencing judge concluded that a total sentence of 21 years before credit for time served should be reduced to 15 years on the totality principle.

[67] In Nduwayo #2, Williams J. referred to many cases. He concluded that a total sentence of 23½ years which, on the principle of totality, be reduced to 18 years before a credit for time served was appropriate. The breakdown of his sentences was also different from the court in the Nduwayo #1.

[68] Ms. Garcia submitted that over the years the “tariff” for this offence has increased. There is some support for that in the Felix decision, in terms of the sentence that was upheld and in the Nduwayo decisions. The circumstances for each complainant in the Felix decision were less serious than, for example, the McGregor case and yet the sentence in Felix was two and a half years whereas in McGregor the sentence substituted by the court was 18 months.

[69] The argument in favour is that these cases continue to come before the court-clearly the message of general deterrence and denunciation is not getting through. On the other hand, it must be noted as well that advances in medical research and treatment have occurred since the Cuerrier decision was decided in 1998. HIV can now generally be treated and held in check. Medical science is better able to assess the risk to life that is posed by the virus and better able to treat it as well. Fortunately, being diagnosed with HIV is no longer the death sentence it once was.

[70] Ms. Garcia submitted that to the extent there have been improvements in treating HIV that should not inure to Mr. Ralph. Since we must look at the consequences of an offender’s actions I fail to see how this could not be relevant. Although the range of sentence is not clear, there is no doubt that sentences imposed where there has been transmission of the HIV virus by the offender to the complainant are higher than similar cases where this has not occurred. Accordingly, as a matter of logic, the severity of the consequences of an HIV infection is a factor.

[71] There are a number of cases that make mention of this. For example in Nduwayo #2, Williams J. at para. 47, accepted the evidence at trial and held:

… that an HIV infection no longer constitutes a virtual death sentence, and with careful medical care and good fortune, an infected person should be able to expect to live a somewhat ordinary life and that life span will not be enormously diminished by the condition. Nevertheless, I am satisfied as well that the condition is incurable and it represents a very serious and permanent condition of harm.

[72] One of the many cases referred to in Nduwayo #2 is R. v. Smith, 2004 BCPC 384, [2004] B.C.J No. 2174, where the British Columbia Court of Appeal held that 42 months was in the mid-range of appropriate sentences where the offender pleaded guilty to repeated acts of sexual intercourse when the offender knew of his HIV positive status, the offender had a significant criminal record and the victim was not infected. I note that the sentence imposed was actually 56 months less pre-sentence custody.

[73] Finally Mr. Proudlove relies on R. v. M(R.P.), 2000 CanLII 4432 (MB PC), [2000] M.J. No. 500, a decision of the Manitoba Provincial Court where the offender was sentenced to a total of eight years in the case of four complainants, two of whom became HIV positive and two who were not infected.

Principles of Sentencing

[74] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation, deterrence; both specific and general, separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. In addition, in imposing sentence s. 718.1 of the Code provides that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” I must also take into account the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2.

Has the Crown proven beyond a reasonable doubt that Mr. Ralph infected Complainant A and/or Complainant B with the HIV virus?

[75] The question of whether or not the Crown has proven beyond a reasonable doubt that Mr. Ralph infected Complainant A and/or Complainant B must be decided before I can determine a fit sentence. This issue was referred to as the “causation” issue during the trial; i.e. did Mr. Ralph cause the HIV infection of these two complainants? If this is proven, it will be a significant aggravating factor on sentencing. In R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, Binnie J., speaking for the court, referred to R. v. Leclerc (1991), 1991 CanLII 7389 (ON CA), 67 C.C.C. (3d) 563 (Ont. C.A.) where at pp. 567-68 Lacourciere J.A. wrote for the court: “Parliament intended that the severity of the punishment should increase to reflect the more serious consequences of the assault.”

[76] I was surprised to see that causation did not appear to be contested in any of the cases referred to me. In the cases where one or more complainant has tested HIV positive, some of the decisions of the sentencing judge state that transmission of the HIV virus by the offender to the complainant was expressly conceded by the offender or the sentencing judge appears to have simply made that assumption because the complainant tested positive after a relationship with the offender where there was risk of transmission of the HIV virus.

[77] The only cases where there was some consideration of this causation issue are cases like Nduwayo and the Supreme Court of Canada’s decision in Williams where the offender and complainant were in a long term relationship and the offender did not find out that he was HIV positive until sometime into the relationship. For example in Williams, the issue raised on appeal was whether the offender, who had failed to disclose that he was HIV positive, could be convicted of an aggravated assault endangering life by engaging in unprotected sex with a complainant who, at the time of the alleged assault, could have already been infected with HIV. In the agreed statement of facts the offender conceded that he did infect the complainant with HIV but as to timing the Crown conceded that it was possible that he had infected her before learning of his positive status. Justice Binnie, speaking for the court, was able to conclude, based on the medical evidence, that it was “likely” that the complainant had been infected with HIV by the accused prior to the date when he was told he was HIV positive. On that basis the conviction for attempted aggravated assault was determined to be the offence proven.

[78] During my sentencing deliberations I became concerned, in light of the Supreme Court’s decision in Williams, that if I found, for the purpose of sentencing, that the Crown has not proven beyond a reasonable doubt that either Complainant A or Complainant B was infected by Mr. Ralph and that they were HIV negative at the time that they began their sexual relationship with Mr. Ralph, that if the causation evidence has been lead as part of the trial, that I would necessarily have made the same finding which arguably might have meant that Mr. Ralph should have been convicted only of attempted aggravated assault with respect to these two complainants. Although I did not see this issue impacting on sentence, I wanted to ensure that I had convicted Mr. Ralph for the correct offences.

[79] At my request counsel re-attended before me on May 23rd to address the issue. They agreed that I was not yet functus. After further discussion with counsel I was able to satisfy myself that given the definition of a “significant risk of serious bodily harm” as set out by the court in Mabior at para. 84, if I found on sentencing that one or both of the complainants might have been HIV positive before they met Mr. Ralph that would not mean that he did not also expose them to a realistic possibility of transmission of HIV in the circumstances of this case. It was never the position of the Defence that the complainants were in fact HIV positive before meeting Mr. Ralph and there was no burden on the Crown to prove otherwise as part of the Crown’s case on liability; see R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371 at para. 95.

[80] No medical evidence was called in this case but some can be gleaned from the latest decision from the Supreme Court of Canada of Mabior. In that case, at para. 98, Chief Justice McLachlin states that although HIV does not pass through good quality condoms, condom use is “not fail-safe, due to the possibility of condom failure and human error”. At para. 99, she continued: "…In my view, the evidence does not establish that condom protection alone precludes a realistic possibility of transmission."

[81] As for the level of risk, Mr. Proudlove referred to paras. 66-67 in Mabior where some of the scientific evidence is summarized. He submitted that the baseline for risk does not change and so even if a complainant had unprotected sex a thousand times with Mr. Ralph the frequency does not increase the risk of infection which remains at whatever the baseline number is. He submitted that if, for example, the risk is 1 in 800 then even having unprotected sexual intercourse 800 times does not guarantee transmission. Although this may be the case, obviously the more times the same level of risk is undertaken, the more opportunity there is for the virus to be transmitted.

[82] Medical evidence in Williams, which was entered by way of agreed statement of facts, also highlights the difficult burden on the Crown to prove beyond a reasonable doubt that the complainants were HIV negative before engaging in sexual intercourse with Mr. Ralph. At para. 11 certain admitted facts were stated including the fact that a single act of unprotected vaginal intercourse carries a significant risk of HIV transmission.

[83] The Supreme Court in Mabior at para. 84 held that “a significant risk of serious bodily harm” within the meaning of Cuerrier is established by showing “a realistic possibility of transmission of HIV”. The court further held at para. 101 that a “realistic possibility” of HIV transmission is not negated by evidence that condom protection was used and the accused’s viral load was low at the time of intercourse.

Complainant B

[84] Ms. Garcia submitted that I had already made a causation finding with respect to Complainant B, relying on paragraph 176 of my Judgment which reads as follows:

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.

[85] At trial both counsel took the position that it is not an essential element of the offence of aggravated sexual assault that the Crown prove beyond a reasonable doubt that Complainant A and Complainant B were not HIV positive when they met Mr. Ralph or that it was Mr. Ralph who infected them. It was agreed and it was clear to counsel that the issue of “causation”; namely whether or not Mr. Ralph infected either or both of the complainants, is only relevant to sentencing, and would only be considered in the event Mr. Ralph was convicted of either of these charges. The finding of fact that I did make with respect to Complainant B, at paragraph 176 of my Judgment, was made only in response to Mr. Ralph’s evidence that she had told him that she had AIDS. It was a factual finding impacting on my credibility assessments and was made, like all findings of fact, on the standard of proof of a “balance of probability”. For the purpose of sentencing however, the Crown bears the burden of proving causation on the standard of proof of “beyond a reasonable doubt”.

[86] The issue then is whether or not the Crown has adduced sufficient evidence to persuade me beyond a reasonable doubt that Complainant B was HIV negative when she met Mr. Ralph or in other words that she was infected by Mr. Ralph. The evidence on that issue can be summarized as follows.

[87] Prior to January 2011, when Complainant B learned that Mr. Ralph was HIV positive, she had never been tested for HIV. She testified that before she met Mr. Ralph she thought she was “pretty healthy”. During her relationship with Mr. Ralph it was a mutual decision not to use condoms because Complainant B did not think there was an issue with either Mr. Ralph or herself. She first learned she was HIV positive in January 2011.

[88] Mr. Proudlove submitted that Complainant B testified that when she moved out of Mr. Ralph’s place in July 2010 she got sick. There is no evidence that this had anything to do with an HIV infection but she described it as unlike anything she had had before.

[89] Complainant B’s evidence that she had never used intravenous drugs, shared needles or had a blood transfusion was not challenged. She did admit to three tattoos and that she was not sure if the needle was sterilized before she was tattooed with it. A sister and her friend were tattooed before her at the same place. Her sister is not HIV positive and she does not believe her friend is either.

[90] Complainant B was married at 18 but her husband was deported very soon after. She was not asked whether they had a sexual relationship and if so whether or not condoms were used.

[91] Complainant B admitted that she had probably at least 20 sexual partners before her relationship with Mr. Ralph. She also had other partners while she was with Mr. Ralph. Complainant B testified that she had unprotected sex with four men before and during her relationship with Mr. Ralph including unprotected sex six or seven times with a man named Alex. She had a relationship with someone in 2007 and she does not know that person’s status. Before Complainant B’s relationship with Mr. Ralph, she had a sexual relationship with his brother, Calvin. Complainant B did not tell Public Health about Calvin.

[92] In the period July 2010 to January 2011; i.e. after her relationship with Mr. Ralph, Complainant B had one sexual partner with whom she had unprotected sex. With all of the others a condom was used at the onset of erection.

[93] When Complainant B was tested for the HIV virus, she had to provide names of prior sexual partners. She had lost touch with most of them and did not have first and last names for all of her sexual partners. She said that the bulk were one night stands. Complainant B has not received any notice from TPH that anyone else has tested positive that she has had sexual contact with. With respect to the persons she was intimate with before Mr. Ralph, she knows that three of them were tested and tested HIV negative.

Complainant A

[94] Complainant A testified that she was never told she was HIV positive before her relationship with Mr. Ralph. She had no diseases as far as she was aware of before she met him. She had regular physicals and thought she might have been tested for HIV but to her knowledge never tested positive. She was seeing the doctor every six to nine months and she was never told there was anything wrong with her health.

[95] Complainant A’s evidence that she never had a blood transfusion, never did intravenous drugs or shared needles was not challenged. While she was with Mr. Ralph she did not have sex with anyone else.

[96] Complainant A had two sexual partners before Mr. Ralph. She was never told by either of them before she saw Mr. Ralph that either of them were HIV positive. She had intercourse with one of them and he used condoms every time. One of her partners has been deported but according to his girlfriend, he was “clear”. His new girlfriend spoke to her because she heard that Complainant A was HIV positive. The other person she had oral sex with and for that she did not use a condom. She speaks to this partner once in a “blue moon”. She does not understand him to be HIV positive because of information she has received from his sister.

Conclusion on Causation

[97] Ms. Garcia argued that based on the Cuerrier and Mabior decisions expert evidence is not needed to establish that daily unprotected sex and a detectable viral load is going to result in the transmission of the HIV virus. She argued that the “logical inference” is that Complainant B was infected by Mr. Ralph and that I can make this finding beyond a reasonable doubt. She submitted that Complainant B testified that she took precautions with her sexual partners before Mr. Ralph but as I have summarized, that is not accurate. Ms. Garcia argued that Complainant A had regular medical care and was healthy from what she knew when she met Mr. Ralph. She had two partners before Mr. Ralph and used condoms. Ms. Garcia also argued that a logical inference is that Complainant A was infected by Mr. Ralph.

[98] Mr. Proudlove pointed out that we do not have the medical records of either complainant and he argued that I need better evidence on the record. There was no attempt by the Crown to secure medical records other than what the complainants testified to. Mr. Proudlove also submitted that the Mabior decision does not say that you can draw the inference that unprotected sex is going to result in the transmission of the HIV virus. It is a risk not a certainty. I would add that none of the cases suggest that the HIV virus can be transmitted to someone who is already HIV positive.

[99] There is no evidence as to what strains of HIV the complainants or Mr. Ralph have and so there is no exclusivity of opportunity demonstrated here.

[100] Given the number of Complainant B’s sexual partners before, during and after her relationship with Mr. Ralph and the fact that she had unprotected sex with some of them and that she has not been able to follow up with each of them, I conclude that although Mr. Ralph is probably the source of her HIV infection I cannot be sure that she was not infected by another partner. She engaged in unprotected sex with many of them and the information concerning their HIV status is based on vague hearsay and is incomplete. Although TPH takes steps to track down sexual partners if someone tests positive for the HIV virus, on these facts I cannot be sure that Complainant B would have been told by TPH about an HIV positive partner as any partner, like her, would not necessarily know her last name or how to contact her.

[101] I also do not have any substantive medical evidence with respect to Complainant B that might for example, explain if and when she developed an AIDS defining illness and whether or not that sheds any light on when she was first infected. There are simply too many questions in my mind about whether or not any of Complainant B’s other sexual partners might have been HIV positive to be satisfied that Mr. Ralph is the source of her HIV infection.

[102] For these reasons I find that the Crown has not proven beyond a reasonable doubt that it was Mr. Ralph who infected Complainant B. The fact that I find it to be very likely that he did is unfortunately not enough.

[103] As for Complainant A, the decision is more difficult. I cannot be absolutely certain that she did not contract the HIV virus from one of her two sexual partners before she met Mr. Ralph as the evidence as to their HIV status is based on hearsay and is not reliable. Condoms are not failsafe and she was not asked if a condom had ever broken with one of these partners. However, the onus on the Crown is not to prove causation to an absolute certainty as that would be an impossible burden for the Crown to meet. I find that given that Complainant A was intimate with only two men before Mr. Ralph and that she took precautions and that to the best of her knowledge neither of these men later tested HIV positive that the Crown has proven beyond a reasonable doubt that Mr. Ralph is the source of her HIV infection.

Determination of a Fit Sentence

[104] In turning to my determination of what is a fit sentence in this case I begin by referring to Cuerrier at paras. 141-142, where the Supreme Court of Canada made it clear that denunciation and deterrence of both the offender and others and where necessary, the separation of the offender from society in order to protect the public are the primary sentencing objectives in these cases:

…the criminal law does have a role to play both in deterring those infected with HIV from putting the lives of others at risk and in protecting the public from irresponsible individuals who refuse to comply with public health orders to abstain from high risk activities.

Where public health endeavours fail to provide adequate protection to individuals like the complainants, the criminal law can be effective. It provides a needed measure of protection in the form of deterrence and reflects society’s abhorrence of the self-centred recklessness and the callous insensitivity of the actions of the respondent and those who have acted in a similar manner…. If ever there was a place for the deterrence provided by criminal sanctions it is present in these circumstances. It may well have the desired effect of ensuring that there is disclosure of the risk and that appropriate precautions are taken.

[105] Mr. Proudlove conceded that deterrence, denunciation and protection of the public are the most important objectives in this sentencing. As a result other objectives such as rehabilitation are of lesser weight.

[106] There are a number of aggravating factors beyond the nature of these very serious offences. Certainly with respect to the longer term intimate relationships Mr. Ralph formed with Complainant A, Complainant B and Complainant C, he abused a trust that had been established. Each of these women believed that they would have a long-term relationship with Mr. Ralph which was necessarily based on trust and confidence that he would not do anything to jeopardize their well-being. Mr. Ralph confirmed that he was looking for a long term partner.

[107] Ms. Garcia also relied on the disparity in age between Complainant B who was 18 turning 19 and Mr. Ralph who was 31 years old as an aggravating factor. She submitted that this would naturally mean that Mr. Ralph was the dominant figure. Although I do not find that Mr. Ralph was dominant in the sense argued by Ms. Garcia, I do find that the age discrepancy no doubt added to the trust that Complainant B had in Mr. Ralph. It also made her more vulnerable. In the case of Complainant A, she is the only complainant who questioned Mr. Ralph specifically about whether he "had anything" clearly a reference to sexually transmitted diseases (“STDs”) and he deliberately misled her about his situation. This is an additional aggravating factor in her case.

[108] Even apart from the element of trust, all of the complainants, including Complainant D could reasonably expect at a minimum that Mr. Ralph would not knowingly and repeatedly expose them to the HIV virus, known to be a dangerous, contagious and incurable disease. Although he took precautions with Complainant D, she would not have engaged in even protected intercourse with Mr. Ralph had she known of his HIV positive status. As for the other complainants, for the most part Mr. Ralph took no precautions when engaging in sexual intercourse and as such exposed them on countless occasions to potentially life threatening consequences. Save for Complainant D, this is not a case like Felix where there were only a few occasions of unprotected intercourse. Apart from Complainant D, the blameworthy conduct was repeated many, many times with each complainant.

[109] Also aggravating is the fact that there are four complainants. Although for a short period of the time at the start of Mr. Ralph’s intimate relationship with Complainant C he was unaware of his HIV positive status, when he found out about it in August 2003 and despite being counselled then as to the need to inform his sexual partners, he did not inform her right away of what he knew. Having been told that he could transmit the HIV virus to his sexual partners, and knowing his own distress as to what a positive HIV diagnosis meant, Mr. Ralph paid no heed to the likelihood of inflicting the same harm on these complainants that he now had to deal with.

[110] In these circumstances, given what Mr. Ralph knew about his illness, particularly after 2007 when there could be absolutely no question of his complete knowledge of the risk he was exposing these women to, he ignored numerous and repeated warnings from TPH that he must inform his sexual partners and take precautions and continued to have unprotected intercourse with these women. The only possible explanation for this is that he in fact had no regard for their well-being and preferred instead to enhance his own sexual gratification. This is also an aggravating factor. His conduct must be condemned by this court in the strongest of terms.

[111] Mr. Proudlove submitted that it was Mr. Ralph’s fear to the level of paranoia that his HIV status would be found out that motivated this which he submitted was from the possible loss of life with respect to his wife. I do not accept that submission. The evidence was not clear, certainly not from Mr. Ralph, that he was really concerned that his wife back in St. Vincent would commit suicide if she found out that he was HIV positive. In any event that would not explain his entering into sexual relationships with the complainants and putting them at risk.

[112] Mr. Proudlove agreed that Mr. Ralph’s behaviour was very callous but said he was not trying to infect others; rather he was indifferent. I accept this. As in McGregor I do not find that there was a deliberate intent on the part of Mr. Ralph to infect the complainants. Mr. Ralph’s actions can only be explained by his own selfish desires either to enhance his sexual experience, perhaps father a child, and avoid the risk of people knowing that he is HIV positive. Although he was not deliberately trying to infect the complainants with HIV, and although he may have minimized the risk of infection in his own mind, the fact remains that based on the repeated counselling Mr. Ralph had received from TPH and elsewhere he must have known that his conduct was putting the women he says he cared for at a significant risk of HIV infection.

[113] Ms. Garcia argued that although there was no physical violence with Complainant B there was an aspect of a domineering and possessive relationship and said it was akin to domestic violence. There was insufficient evidence of that before me and Mr. Ralph was not charged with any simply assaultive behaviour save with respect to Complainant A, an offence he will be sentenced for. I, therefore, do not accept that this is a situation akin to domestic violence as asserted by Ms. Garcia.

[114] Ms. Garcia also submitted that Mr. Ralph used drugs and alcohol to make himself more attractive to the complainants. Mr. Proudlove agreed that the vulnerability of the two complainants in terms of use of drugs and alcohol was one way of characterizing it but this was not a case where they were addicted or had no choice.

[115] 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 evidence to conclude that this was a deliberate choice because they were vulnerable. Although it does appear that Mr. Ralph liked young women who wanted to drink, smoke marijuana and have sex, there is no evidence to suggest that he was preying upon such women. Rather these were the kind of women he found attractive and wanted to have a long term relationship with; what he was looking for in a partner he got. My finding was that by Mr. Ralph’s deceit the consent of the complainants was vitiated. The complainants did not consent to have sex with Mr. Ralph because he gave them drugs or alcohol or because he was possessive and domineering. Those were aspects of the relationship but not elements of the offence that Mr. Ralph has been convicted of. I do not consider them to be aggravating factors.

[116] The impact on the complainants must also be considered. No doubt as Complainant B expressed, each complainant must have experienced at least a short period of extreme anxiety waiting to find out whether or not she was HIV positive. For Complainant A and Complainant B, their worst nightmare came true with a positive diagnosis. Complainant B certainly reasonably believes that Mr. Ralph is the source of her infection and he likely was. I have found that the Crown has proven beyond a reasonable doubt that he was with Complainant A. Complainant A's and Complainant B's lives have been irrevocably altered. The other two complainants, and in particular Complainant C, are lucky they were not infected.

[117] In considering the additional aggravating factor proven by the Crown with respect to Complainant A; namely that she was infected by Mr. Ralph, I have already set out some of the cases that deal with the seriousness of the consequences of being diagnosed with and living with HIV. Despite medical advances, I find that the impact on Complainant A as a result of her being infected by Mr. Ralph is severe. As the court noted in Mabior at para. 17, "STDs, like HIV, are extremely serious, involving permanent and life altering symptoms, and in some cases death." At para. 92 McLachlin CJC stated that "…HIV is indisputably serious and life endangering. Although it can be controlled by medication, HIV remains an incurable chronic infection that, if untreated, can result in death."

[118] In light of the aggravating factors a high degree of moral culpability attaches to Mr. Ralph. As Binnie J. stated at para. 19 in Williams: “The exposure of an unwitting sexual partner to the risk of HIV infection, through a deliberate deception, is the stuff of nightmares, yet cases of such misconduct now regularly come before the courts.”

[119] On the question of specific deterrence, Ms. Garcia submitted there is a very high risk of Mr. Ralph re-offending unless he cooperates with intensive psychiatric therapy. Mr. Proudlove conceded there is a high risk of re-offence unless Mr. Ralph gets some help to understand the inappropriateness of his prior behaviour but he suggested that is not necessarily psychiatric help. Ms. Garcia advised that at Central East although there are programs available, there’s been no evidence of Mr. Ralph taking advantage of any of them. Mr. Proudlove submitted that Mr. Ralph’s evidence at trial about the stigmatization of the disease demonstrated that this is of considerable concern to him as is his concern for his wife and son in St. Vincent; a fear of harm and a risk of loss of life which was his understanding of the community at the time. He submitted that since Mr. Ralph is opposed to publicity of his HIV status I should not rely on the fact that he did not do any programs. In my view had Mr. Ralph taken advantage of such programs it could be a mitigating factor but his failure to do so is not aggravating. Hopefully once Mr. Ralph is moved to a penitentiary such programs will be available and he will take advantage of them.

[120] The need for specific deterrence is of significant importance in the sentence I impose. Mr. Ralph has shown the capacity to act with contempt for the warnings he has been given as to the danger of his actions and he has demonstrated a flagrant disregard for the risks he has exposed the complainants to. Unfortunately unless Mr. Ralph receives some serious counselling assistance, in my view it is likely that Mr. Ralph would not abstain from unprotected sexual relations with unwitting partners in the future if given the opportunity. The need for specific deterrence is high.

[121] In the way of mitigating factors, Ms. Garcia submitted that Mr. Ralph has shown no true remorse and that the few statements made in the PSR are self-serving and narcissistic. She also pointed out that Mr. Ralph maligned the complainants when interviewed by the probation officer who prepared the PSR, suggesting that his former partners were acting in a promiscuous fashion. Mr. Proudlove relied on the comments in the PSR where Mr. Ralph declares that he is sorry for what happened and submitted that Mr. Ralph’s remorse is demonstrated in the two guilty pleas.

[122] I agree with Ms. Garcia that Mr. Ralph is not sincerely remorseful for his actions. I have no evidence to suggest that he has any insight into his crimes. However, it is the case that with respect to Complainant C and Complainant D, once Mr. Ralph was satisfied that they had both attended court and were willing to testify, he pleaded guilty and agreed to certain facts with respect to each of them. The fact he pleaded guilty saved these two women from having to testify. This is a mitigating factor not present with respect to the other two complainants. Mr. Ralph pleaded not guilty to the other charges involving Complainant A and Complainant B. He cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence on these convictions because of a guilty plea. This is a neutral factor.

[123] In terms of rehabilitating Mr. Ralph to otherwise become a productive member of society the prospects are also not good. He has been consistently on social assistance while in Canada. As Ms. Garcia submitted it seems that he is unmotivated to improve his circumstances through education or occupational training. Once he was diagnosed with HIV he also was unmotivated to seek the support that is available to someone living with HIV. TPH pursued Mr. Ralph to provide him with information and refer him to support groups but he did not avail himself of this. Instead he continued to sell marijuana.

[124] Mr. Proudlove suggested that Mr. Ralph essentially be sentenced as a first offender; see R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 CCC (3d) 289 (Ont. C.A.) at pp. 295-296 where the court held that it is a well-established principle of sentencing that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. Given the nature of Mr. Ralph’s previous convictions, I agree that he should essentially be treated as a first offender.

[125] Mr. Proudlove conceded that the “jump” principle is almost of no effect here. He also conceded that the immigration consequences are not germane in this case.

[126] Considering all of these factors, in light of counsel’s submissions and the case law that I have reviewed, I have concluded that the appropriate sentences for the aggravated sexual assault convictions are as follows:

(a) For Complainant C, given she and Mr. Ralph were in an intimate relationship that lasted two years that included regular unprotected intercourse, the fact that it began shortly before Mr. Ralph knew that he was HIV positive, the fact Mr. Ralph then received extensive HIV counselling which he ignored, the trust that Complainant C would have had in Mr. Ralph, the undisputed position of Mr. Ralph that at some point he informed her of his HIV positive status and the fact that Mr. Ralph pleaded guilty, in my view a fit and reasonable sentence is two and one half years.

(b) For Complainant D, given the guilty plea and the fact that there were only two occasions of protected sex, but also considering that these occasions were in July 2009, six years after Mr. Ralph was diagnosed as being HIV positive and also after August 2007 when he was diagnosed with an AIDS defining illness, and after Mr. Ralph had receive extensive and repeated HIV counselling which he ignored, a fit and reasonable sentence is one and one half years.

(c) For Complainant B, given that she and Mr. Ralph were in an intimate relationship that lasted about two and one half years and given that they engaged in regular unprotected intercourse over the course of that relationship, given the trust Complainant B would have had in Mr. Ralph and the fact that the relationship postdated August 2007, and after Mr. Ralph had receive extensive and repeated HIV counselling which he ignored, a fit sentence is four years.

(d) For Complainant A, given that she and Mr. Ralph were in an intimate relationship for two months, and given that they engaged in regular unprotected sex during the course of that relationship, given the trust Complainant A would have had in Mr. Ralph, particularly given she had expressly questioned him about whether or not he had STDs, given that the relationship postdated August 2007, and after Mr. Ralph had receive extensive and repeated HIV counselling which he ignored and my finding that Mr. Ralph infected Complainant A with the HIV virus, a fit sentence is five years.

(e) For the other convictions with respect to Complainant A, counsel are in agreement as to the length of the total sentence for these two convictions; they differ only as to how the time should be allocated. In my view a sentence of 90 days on each conviction each to run consecutive to the other sentences is an appropriate sentence.

[127] This brings the total sentence of the aggravated assault convictions to 13 years which along with the sentence on Counts # 2 and # 3 results in a total sentence of 13½ years. Applying the totality principle I find that a fit global sentence for all convictions is 10½ years.

[128] Accordingly I must arbitrarily adjust the sentences to be imposed to reduce the global sentence by three years.

Pre-Sentence Credit

[129] To the point of the first day of the sentencing hearing; April 7, 2014, Mr. Ralph had been incarcerated for 1,193 days, which Mr. Proudlove submitted is equal to three years, three months and one week. Ms. Garcia did not contest this calculation. To today’s date Mr. Ralph has been in custody for a further 63 days or nine weeks. The total time in custody awaiting sentence has accordingly been 1,256 days.

[130] In support of seeking an enhanced credit for pre-sentence custody a number of exhibits were filed to show what the conditions were while Mr. Ralph has been in custody but this evidence is no longer necessary in light of the recent Supreme Court of Canada decision in R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26.

[131] As Karakatsanis J., speaking for the unanimous court, the “circumstances” that justify enhanced credit under s. 719(3.1) of the Criminal Code may include loss of eligibility for early release and parole. A credit of 1.5 days for every day in custody compensates an accused for the loss of eligibility for early release. In my view particularly given Mr. Ralph’s prior criminal record, he should not be penalized for insisting on his right to a trial. A consideration of the conditions in the various institutions where Mr. Ralph was held is unnecessary. He is entitled to an enhanced credit.

[132] Accordingly Mr. Ralph shall be credited on the basis of 1.5 days for every day in custody to the date of this decision. By my calculation the credit equals 1,884 days or five years and two months. I trust counsel will advise me if they have a concern about my calculation.

Final Disposition

[133] Mr. Ralph would you please stand.

[134] With respect to your conviction for the aggravated sexual assault of Complainant C, contrary to s. 273 of the Criminal Code; Count # 6, I sentence you to two years.

[135] With respect to your conviction for the aggravated sexual assault of Complainant D; contrary to s. 273 of the Criminal Code; Count # 5, I sentence you to one year to be served consecutively to your other sentences.

[136] With respect to your conviction for the aggravated sexual assault of Complainant B; contrary to s. 273 of the Criminal Code; Count # 4, I sentence you to three years to be served consecutively to your other sentences.

[137] With respect to your conviction for the aggravated sexual assault of Complainant A; contrary to s. 273 of the Criminal Code; Count # 1; I sentence you to four years to be served consecutively to your other sentences.

[138] With respect to your conviction for the forcible confinement of Complainant A; contrary to s. 279 of the Criminal Code; Count # 2; I sentence you to 90 days to be served consecutively to your other sentences.

[139] With respect to your conviction for the assault of Complainant A; contrary to s. 279 of the Criminal Code; Count # 3; I sentence you to 90 days to be served consecutively to your other sentences.

[140] After giving you credit for pre-sentence custody on a 1.5 to 1 basis, which is five years, and two months, to be applied to your global sentence of 10½ years, you have five years and four months remaining to be served.

[141] In addition there will be a mandatory weapons prohibition order pursuant to s. 109(1) of the Criminal Code for life and a mandatory DNA order pursuant to s. 487.04 of the Criminal Code requiring that a sample of your DNA be added to the databank.

[142] In addition, pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order in Form 52 that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for life. My reason for making this order is that you have been convicted of sexual assault which is a designated offence under s. 490.011(1)(a)(xvi) and your counsel has not suggested that this order would have a disproportionate impact on your privacy or liberty interests.

[143] Finally there will be an order pursuant to s. 743.21 requiring that while in custody, you have no contact, directly or indirectly, with Complainant A, Complainant B, Complainant C, or Complainant D and that you not contact any of Complainant B’s immediate family (as known to you). This order includes the following persons:

(1) A.P.

(2) L.B.

(3) J.B.

(4) V.B.

(5) K.B.

(6) Y.H.

(7) A.H.

(8) H.H.

SPIES J.

Released: June 06, 2014