ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 157/12
DATE: 20140411

BETWEEN:

HER MAJESTY THE QUEEN
Appellant

– and –

J. H.
Respondent

Rick Nathanson, for the Crown/Appellant

Jonathan Shime and Wayne Cunningham, for the Respondent

HEARD: February 27, 2014

TROTTER J.

INTRODUCTION

[1] J.H. suspected that he was infected with genital herpes (HSV-2). He had unprotected sexual intercourse with the victim. As it turned out, he was infected and he did transmit the virus to the victim, causing dramatic physical and emotional consequences.

[2] J.H. entered a plea of guilty to sexual assault before the Honourable Mr. Justice Melvyn Green of the Ontario Court of Justice. After hearing submissions and reserving judgment, Green J. imposed a conditional discharge and placed J.H. on probation for one year: R. v. J.H., [2012] O.J. No. 5803 (O.C.J.).

[3] The Crown appeals the sentence, arguing that it is manifestly unfit. While I might have been inclined to register a conviction and impose a custodial sentence, I cannot say that the sentencing judge erred in imposing the disposition that he did. Given that this was presented to the sentencing judge as a “test case”, and in view of the fact that the appeal was argued roughly 15 months after the sentence was imposed, the appeal should be dismissed.

THE FACTS

(a) The Offence

[4] The factual foundation for the plea was contained in an Agreed Statement of Facts (ASF). At the time of the offence, J.H. worked as a bartender. He and the victim had met and socialized two days earlier. On March 7, 2011, the victim came to the bar where he worked. They drank and socialized. At the end of the evening, they went to the victim’s apartment where they engaged in unprotected sexual intercourse.

[5] At the time, the J.H. had never been diagnosed with herpes, but he knew that he was likely infected. He failed to tell the victim about it. Within days, the victim began to suffer the symptoms of the virus. She went to her doctor on March 14, 2011 for a blood test; that evening, she became very sick, feeling feverish and lethargic. She could not get out of bed. These symptoms lasted for several days. On March 22, 2011, she tested positive for HSV-2.

(b) The Impact on the Victim

[6] Contracting herpes has been devastating for the victim. Since the initial outbreak, she continues to suffer outbreaks about once a month. In a Victim Impact Statement (VIS), she wrote: “I will have to live with the stigma it holds, the isolation it causes and embarrassment it carries everyday until the day I die.” In very poignant terms, the victim described how she has had to adapt her life to minimize the outbreaks. This includes taking expensive medication, which causes uncomfortable side effects.

[7] Understandably, the victim persistently frets about being socially and intimately isolated because of herpes. She worries about the risk of spreading the virus to others. Moreover, she worries about having children. As she said: “My future plans of having children are forever altered. When I am about to give birth, I would then need a C-section to prevent herpes from transferring to my child in case of an outbreak at that time.”

(c) Facts Relating to the Offender

[8] At the time of sentencing, J.H. was 36 years old. He is unmarried and has no children. J.H. was born in England and has been in Canada since 2002. He is now a permanent resident. He expressed remorse during the sentencing proceedings and apologized to the victim.

(e) The Positions of the Parties

[9] When counsel made their sentencing submissions, there was (and still is) little existing guidance in the case law. Crown counsel at trial (not Mr. Nathanson) characterized the sentencing as a “test case.”[^1] In very brief submissions, the Crown submitted that a 6-month conditional sentence or a 90-day intermittent sentence would be appropriate. Defence counsel requested a conditional discharge.

(f) The Sentencing Judge’s Reasons

[10] The sentencing judge prepared comprehensive reasons for his decision. With great sensitivity and empathy, he considered the impact that the offence has had on the life of the victim. After considering the submissions and the few authorities provided to him provided by counsel, the sentencing judge was persuaded that the offence could be addressed by way of a discharge and probation. He engaged in a thorough analysis of the relevant authorities, including those relating to discharges under s. 730 of the Criminal Code.

[11] A précis of the sentencing judge’s decision would not do justice to his thoughtful reasons as a whole. Instead, I identify the following factors that the sentencing judge relied upon to reach his ultimate conclusion:

• J.H.’s guilty plea which, while not offered at the earliest opportunity, spared the victim from an invasive cross-examination under s. 276 of the Criminal Code (concerning the possibility of having been infected by someone else);[^2]

• This was a test case;

• J.H.’s lack of a prior criminal record;

• The lack of any need to specifically deter J.H.; and

• A conviction would impact adversely on J.H.’s immigration status.

The sentencing judge imposed a probation order for 1 year with a number of conditions, one being that J.H. perform 80 hours of community service. Acknowledging that he could not dictate the precise service, the sentencing judge strongly urged the probation office to arrange for J.H. to participate in education concerning STD transmission.[^3]

ANALYSIS

[12] The Crown submits that the sentencing judge made a number of errors in the manner in which he approached this case. I can find no error in the trial judge’s approach. Given that the Crown at trial submitted that a conditional sentence or an intermittent sentence would be appropriate, protection of the public from J.H. was not a live issue. It is clear from the record that he was remorseful and would adjust his behaviour in the future. Other judges in different circumstances, relying on general deterrence, might be inclined to impose a custodial sentence for this type of offending; however, on the record before him, the sentencing judge’s analysis and conclusion are defensible.

[13] The sentencing judge was right to treat the sentencing of J.H. as a test case. He acknowledged that the offence was serious. He was alive to the obvious comparison with the HIV cases (both on liability and sentence). However, the sentencing judge observed that the Supreme Court of Canada in R. v. Mabior (2010), 2010 MBCA 93, 261 C.C.C. (3d) 520 (S.C.C.), in its discussion of consent, did not address the transmission of herpes, saying at para. 92: “Where the line should be drawn with respect to diseases other than HIV is not before us.”

[14] The Crown argues that the trial judge erred in failing to follow “binding authority” from the Court of Appeal for Ontario – R. v. Sherman, [2010] O.J. No. 2612 (C.A.). Sherman also involved the transmission of the herpes virus. My colleague, Roberts J., imposed a sentence of 12 months’ imprisonment. In a short endorsement, dismissing the appeal from conviction and sentence, the Court said the following about the sentence that was imposed (at para. 4):

The appellant received a total sentence of 12 months. Counsel submits that a conditional sentence should have been imposed. The trial judge considered the appropriateness of a conditional sentence. She found it to be inappropriate and gave reasons for that conclusion, including the fact that the appellant was on probation for domestic assault when he committed these offences. We see no reversible error in the trial judge's analysis.

[15] This endorsement was provided to the sentencing judge. He specifically addressed this decision in his reasons, noting its distinguishing features (a prior criminal record, no guilty plea, a conviction for criminal negligence causing bodily harm and a simultaneous conviction for another offence of violence). Crown counsel at the sentencing hearing acknowledged the apparent differences between the two cases and said that the case at bar was the first one to deal exclusively with herpes transmission.[^4]

[16] On appeal, the Crown produced the transcript of the reasons for sentence of Roberts J. in Sherman. The transcript demonstrates a careful analysis of the issue, with emphasis on denunciation and general deterrence. On a reading of these reasons, some of the factual differences between this case and Sherman tend to fade away.

[17] Mr. Nathanson argues that it was incumbent upon the sentencing judge to chase down the reasons of Robert J. I reject this submission. Both counsel at the sentencing hearing relied on this authority and contrasted it with the case at bar. It was the responsibility of counsel to provide the sentencing judge with all of the necessary information, including the reasons of Roberts J., which are not available electronically.

[18] More importantly, the short endorsement of the Court of Appeal in Sherman does not purport to give general guidance to sentencing judges in cases involving herpes transmission. It merely approved of the manner in which Roberts J. addressed the issue on the facts before her. If anything, it is the first instalment in the development of a range of sentence for this type of offending. Consequently, the sentencing judge did not err in failing to “follow” this decision, whatever that might mean.

[19] On appeal, counsel for J.H. discovered another case dealing with sexual assault by way of herpes transmission: R. v. Mathew Wilson (March 5, 2013) (Ont. S.C.J.) [unreported]. The case involved an offender who was convicted of three counts of sexual assault for failing to disclose his herpes infection to his intimate partners. Two of his victims acquired the virus. The defence argued that Mr. Wilson should receive a conditional discharge. Interestingly, for the purposes of this appeal, the Crown submitted that a suspended sentence was appropriate. In thorough reasons for judgment, Parfett J. imposed a conditional discharge, noting that the offender was a member of the Canadian Armed Forces and suffered post-traumatic stress disorder as a result of active service overseas.

[20] The Crown argues that the trial judge erred in principle in his approach to the sentencing objective of general deterrence. After identifying this goal, the sentencing judge said the following (at para. 26):

Unless he is an avid reader of the Court of Appeal’s website, the offender would not have been exposed to the legal cautions that, at least in theory, advance the objective of general deterrence. Other than treating the offender as a lamb to be sacrificed on the altar of general deterrence, there seems little point in making him the object of a sentence driven by the possibility of deterring others. What is particularly important at this stage of the evolution of public education about herpes is that others come to understand that omitting to inform one’s partner of one’s HSV-2 infectivity is not merely bad judgment or an act of private immorality but a crime. The imposition of just sentences in the future for the failure to heed this warning will depend upon the individual circumstances that obtain in each of those cases. [emphasis added]

The Crown relies on the underlined portion of this passage and argues that the sentencing judge improperly dismissed general deterrence as a legitimate goal of sentencing. Counsel for the respondent relies on the italicized part of this paragraph to point out that the sentencing judge did not err in this manner.

[21] In R. v. Song (2009), 2009 ONCA 896, 249 C.C.C. (3d) 289 (Ont. C.A.), the Court of Appeal decided a Crown appeal from a conditional sentence imposed in a case involving the production of marijuana. In sweeping, epic language, the sentencing judge refused to follow the Court’s previous cases that discourage the imposition of conditional sentences in the circumstances, save in “rare” circumstances. The sentencing judge also expressed his personal views about general deterrence. In allowing the appeal, the Court said the following at p. 292:

Judges are entitled to hold personal and political opinions as much as anyone else. But they are not free to permit those views to colour or frame their trial and sentencing decisions. They are bound to apply the law as it stands.

Whether these views have merit is a debate for another forum - one in which judges do not participate. Personal diatribes of the nature engaged in by the sentencing judge here are unhelpful, however, and demonstrate to us a lack of objectivity that undermines the deference generally afforded to judges. The principle of deference is not a license for the sentencing judge to defy settled jurisprudence, ignore the principles of the Criminal Code, or use his or her dais as a political podium.

See also R. v. Priest (1996), 1996 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at p. 547.

[22] The sentencing judge in this case did not commit the error identified in Song. This is apparent when the entire passage quoted above in para. 21 is considered in context. Just prior to making these remarks, the trial judge had signaled his agreement with counsel that this was a test case. This was followed by his reference to Mabior. The trial judge was not as concerned about the efficacy of general deterrence as a sentencing principle as he was about the fairness of making an example of this offender in the uncharted territory of this case. This is confirmed by the concluding sentence in the same paragraph, where the trial judge endorses a role for general deterrence in future cases.

[23] My interpretation is supported by the sentencing judge’s discussion of denunciation. After citing R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), the sentencing judge stated at para. 27: “Given, again, the virtual absence of any legal guidance – to the offender as much as myself – it seems unfair that he should bear the exemplary burden of a denunciatory sentence.” He stressed that the “novel situation that obtains here” did not merit a jail sentence. The novelty lay in the paucity of appellate guidance in an emerging application of the criminal sanction.

[24] The Crown further argues that the trial judge overemphasized the role of the J.H.’s immigration status and that he also gave too much weight to his guilty plea. While the sentencing judge rendered his reasons prior to the Supreme Court’s decision in R. v. Pham (2013), 2013 SCC 15, 293 C.C.C. (3d) 530 (S.C.C.), his decision is consistent with the principles discussed in that case. Moreover, it was just one of a number of factors the sentencing judge considered in reaching his conclusion. Similarly, the trial judge recognized that the guilty plea was not an early one, but it was meaningful in sparing the complainant further embarrassment and grief. He was entitled to consider it worthy of mitigation in the circumstances.

CONCLUSION

[25] The sentencing judge characterized the offender’s conduct as serious. It was serious – the impact on the victim has been horrible. In brief submissions, the Crown at trial asked the trial judge to impose a modest (intermittent) jail sentence or a conditional sentence. As I said at the outset, other judges might have been inclined to impose a jail sentence in the circumstances, and perhaps they will be more inclined to do so in the future, depending on how the case law evolves with this type of sexual assault. However, the sentencing judge’s approach to the novel circumstances of this case was thoughtful and it was fair.

[26] I make one final observation. Had I been persuaded that the sentencing judge erred in not imposing a custodial sentence, given the passage of time, I would have declined to incarcerate J.H. at this time. The offence was committed 3 years ago. It took approximately 15 months for this Crown appeal to be argued. J.H. has completed his period of probation, including performing 80 hours of community service. Incarceration at this point in time and in these circumstances would visit unacceptable hardship on J.H.: see R. v. Hollinsky, 1995 8929 (ON CA), R. v. Shaw, [1997] O.J. No. 147 (C.A.) and R. v. Butt, [2012] O.J. No. 3553 (S.C.J.), per Code J.

[27] The appeal is dismissed.

TROTTER J.

Released: April 11, 2014

COURT FILE NO.: 157/12
DATE: 20140411

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Appellant

– and –

J. H.
Respondent

REASONS FOR JUDGMENT

TROTTER J.

Released: April 11, 2014

[^1]: In the Transcript (November 15, 2012), at p. 74, Crown counsel said: “I think we’ve treated this case as a test case.” The Crown also characterized the case as “precedential.”

[^2]: This was when J.H. originally stood charged with sexual assault causing bodily harm and criminal negligence causing bodily harm.

[^3]: As it turned out, this type of community service was not made available to J.H. Instead, he performed 80 hours of community service at a food bank.

[^4]: In the Transcript (November 15, 2012), at p. 74, referring to Sherman, Crown counsel said the following in reply: “It wasn’t the only thing he was sentenced on. And really, in terms of prosecuting people for the transmission of herpes specifically, it’s my sense, based on speaking to other Crowns and what we’ve learned through this process, that this in fact is the first where this is the only issue.”