Regina v WH

CITATION: R v WH, 2015 ONSC 6121

COURT FILE NO.: 15828/14

DATE: 2015-10-02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Regina v WH

BEFORE: E.M. Morgan J.

COUNSEL: John Flaherty, for the Crown Earl Glasner, for the Defendant

HEARD: May 11-15, June 18-19, 29, July 13, and September 8, 2015

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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

REASONS FOR JUDGMENT

[1] The Defendant is charged with sexual assault, aggravated assault, and obstructing justice. He is accused of having forced non-consensual sex on the Complainant, having failed to disclose to her his HIV status, and having offered a bribe to the Complainant to induce her to tell the police that he used a condom during sex.

[2] The charges arise from a three-way sexual encounter during the last week of July 2013 between the Defendant, the Complainant, and a friend of the Defendant’s (who shall be referred to herein as Mr. B). The incident took place in Mr. B’s apartment. The details of what transpired are the subject of differing narratives between the three individuals, but they all agree that at some point that day they met each other, smoked marijuana, drank beer, ate curried chicken and rice, and had sex.

[3] The Defendant states that the sexual relations were entirely consensual. He concedes that the Complainant did not know about his HIV status, but states that his viral load was negligible and that he used a condom. Mr. B agrees that the three-way sexual encounter was consensual, but says that he did not see the Defendant using a condom. The Complainant says that she did not consent to sex and that she does not know whether the Defendant did or did not use a condom.

I. The incident

[4] As indicated, there were three people involved in the incident in question. Somewhat predictably, there are three different versions of what transpired, narrated through the testimony of the three participants.

a) Mr. B’s version

[5] I will observe at the outset that Mr. B was a mostly affable witness, but it was difficult to follow the trail of his story. The difficulty stems for the most part from the mental health condition from which he suffers. He testified that he is a schizophrenic, and that he is on medication to treat his condition. It is readily observable that he is slow and ponderous, perhaps as a result of being medicated. In any event, he conceded early in his testimony that he has memory problems and is often confused in his recollection of events. In Mr. B’s words:

I can’t remember every single thing. Sometimes I don’t remember if I’ve taken my medication. I have to put a check mark on my calendar to see if I’ve taken it.

[6] In addition, Mr. B was a full participant in the events that transpired between the Complainant and the Defendant, not a detached observer. Indeed, as will be related in more detail below, the Complainant’s position at an earlier stage of this matter was that she had been sexually assaulted by both Mr. B and the Defendant. Only later did she change her mind and indicate that her sexual relations with Mr. B were consensual while her relations with the Defendant were not. Accordingly, Mr. B has had some obvious self-interest at stake in fashioning his own position during the various stages of the investigation and legal proceedings.

[7] Furthermore, it was more than apparent from his testimony that Mr. B is not only angry at the Defendant for failing to disclose his HIV status; he is also jealous of the Defendant for the relationship which the Defendant managed to have with the Complainant. In Mr. B’s view, the Complainant chose the Defendant over him, despite the fact that Mr. B knew the Complainant first and the Defendant and the Complainant met each other in Mr. B’s apartment.

[8] Mr. B testified that he first met the Complainant through a telephone chat line. He had spoken with her on the phone several times and met with her once a number of weeks (he was unsure how many) before the incident in issue here. When he first spoke with her she introduced herself as Amanda, but later explained that Amanda was not her name but rather was her friend’s name and that she had been using her friend’s phone to go on the chat line.

[9] Mr. B stated that he had sex with the Complainant – or attempted to have sex with her – the one time he met her before introducing her to his friend, the Defendant. Although in his first statement to the police Mr. B said that he and the Defendant had simultaneous sexual intercourse with the Complainant, this turned out to be more bravado than reality. By the time he testified at trial, Mr. B conceded that at both his first meeting with the Complainant and during the get-together with the Defendant that resulted in the present charges, he tried to have sex with her but was frustrated. Mr. B explained that he suffers from erectile dysfunction, and, as he put it on the witness stand, he “could not rise to the occasion.”

[10] The Defendant, on the other hand, although also schizophrenic and heavily medicated, was capable of out-performing Mr. B and, according to Mr. B, readily did so with the Complainant. Mr. B saw himself sidelined, or relegated to secondary and passive status, by the Defendant’s prowess during what Mr. B described as a consensual threesome. From Mr. B’s point of view, he was humiliated and the Defendant ended up as the Complainant’s favourite – at least until she heard about the Defendant’s HIV status.

[11] In any case, it was evident from his testimony that jealousy and a desire for revenge took hold of Mr. B. He related that he later called the Complainant on the telephone and found her together with the Defendant, and that this discovery led him to verbally taunt the Defendant and call the Complainant rude names.

[12] Mr. B also indicated that he was the one who ultimately advised the Complainant that the Defendant is HIV positive; and although this might well have been a proper piece of advice to give to the Complainant under the circumstances, it was evident in Mr. B’s testimony that he took a certain morbid glee in relaying the news. He told her that the Defendant has “AIDS” (Mr. B does not seem to differentiate between the HIV virus and AIDS), and that she should get herself “checked out”.

[13] All of this emotional involvement by Mr. B, combined with his memory and other cognitive problems, renders his testimony suspect on a number of points. For example, it was difficult to discern with any clarity whether or not he invited the Defendant to join him and the Complainant on the day in issue, or whether the Defendant imposed himself on the scene.

[14] At one point Mr. B testified that he met the Defendant that morning in the coffee shop adjacent to his apartment building. He testified that he told the Defendant that the he has to leave because he has a woman coming to visit him. He stressed in his testimony that the meeting took place in the coffee shop and that he drank a “double double” before leaving the Defendant alone in the coffee shop to go upstairs and wait for the Complainant’s arrival.

[15] A videotaped police interview of Mr. B conducted on August 16, 2013 was put to Mr. B in cross-examination. There he told the interviewing officer that he introduced the Complainant to the Defendant as they all got into the elevator on the way up to his apartment. He made no mention of leaving the Defendant in the coffee shop. When asked whether it is possible that he met the Defendant that morning in the lobby of the apartment building rather than the coffee shop, Mr. B responded, “75-25”.

[16] Mr. B was clear that he was greatly anticipating the Complainant’s visit that morning. He explained that had gone out and purchased some “weed” from a neighbour for the occasion, and had prepared curried chicken and rice (although at other points he suggested that it was the Defendant who did the cooking). He also testified that he sent the Defendant out to get beer, and that the Defendant came back with a six pack for them to drink. It was evident from Mr. B’s testimony that, in his experience, the Complainant had a hearty appetite for food, drink, and recreational drugs, and that he had prepared to be an accommodating host in this regard as a prelude to sex.

[17] Regardless of who invited whom to the apartment, Mr. B was certain that after some imbibing at the kitchen table, the Complainant retired to the mattress in his living room and eventually undressed. It was unclear which of the two men had the first physical contact with her, although Mr B was sure that he asked the Complainant, “Do you want to have a threesome?”, and that she responded, “Yeh.”

[18] As Mr. B explained it, he felt “left out of the action” once the Defendant started with the Complainant, and he proposed the threesome in order to get himself back involved. He confirmed in cross-examination: “She consented to it. She accepted it.”

[19] Mr. B was certain that his friend was “back stabbing” him by forming a relationship with the Complainant. As indicated, when he called the Complainant some time later, he found her together with the Defendant. However, on the day of the three-way sexual encounter at his apartment, he was unclear as to whether the Complainant left the apartment alone at the end of the get-together or whether the Defendant “took off with her.” When pressed as to whether the Defendant and Complainant left the apartment together, Mr. B replied, “I’ll say 50-50”.

[20] Much of Mr. B’s testimony, including his description of the sex acts themselves, is of this hesitant or changing nature. At one point he testified that he saw the Defendant having vaginal intercourse with the Complainant and then withdraw and ejaculate on a blanket that was spread out underneath her; at another point he changed his story and testified that he saw the Defendant having anal intercourse with the Complainant and then ejaculate on her “bum”. At times Mr. B described himself performing vaginal oral sex on the Complainant, and at another point he changed his testimony and said that he engaged her in anal oral sex. His testimony left little doubt that the three-way sex acts were engaged in, but it was confused as to precisely what those acts comprised.

[21] The most important part of Mr. B’s description of the three-way sexual activities has to do with whether or not he saw the Defendant use a condom. He said at several points in his testimony that he did not see the Defendant put on a condom, although it is fair to say that he could not be definitive. In his police statement in August 2013, he was even less sure. When questioned by the police officer, Mr. B responded with uncertainty:

Q: [The Defendant] did not wear a condom?

A: No, he did not.

Q: But is it possible that he wore a condom?

A: Yes.

[22] This accords with the “50-50” or “75-25” quality of Mr. B’s entire narrative. It is half to three-quarters reliable.

b) The Complainant’s version

[23] At the outset it is important to note that although the Complainant did not indicate that she takes prescription medication like Mr. B and the Defendant, she too has memory problems. In her words: “I don’t know some stuff exactly. Some things are blurry, some things are there.”

[24] She testified unhesitatingly about her memory issues and the weakness of her mental state, often in response to being caught contradicting her own prior evidence. As an illustration, she blamed her mental frailties when asked why she testified that Mr. B tried to have sex with her twice when she had previously told the police that Mr. B tried to have sex with her only once: “My mind. It’s like in pieces. Everything is foggy; some places I’m remembering, some places I’m not remembering.”

[25] In my view, there were problems with the Complainant’s credibility above and beyond any frail state of mind she may have been experiencing. Indeed, at times she testified very forcefully, but her testimony simply could not be believed. She told the police officer who interviewed her in August 2013 that she had been “gang raped” by both men – i.e. the Defendant and Mr. B. Indeed, at that point she claimed not to even know the Defendant’s name. At the preliminary inquiry, and again at trial, she testified that the sexual contact with Mr. B was consensual, but “not with [the Defendant] here.” As she put it, “it was his friend I had a problem with.”

[26] In cross-examination, however, she was more ambivalent about describing sex with the Defendant. She agreed that she moved from the kitchen area of Mr. B’s apartment to the sofa with the Defendant. She also confirmed the description of her participation that she had given to the police during her August 2013 interview: “We tried it front ways and then back ways.” The more the Complainant was asked about the incident in question, the less her own answers portrayed her as an unwilling participant.

[27] The Complainant testified that she was traumatized after intercourse with the Defendant. She stated that she got up and went to the washroom feeling “vomity” and dizzy. She said could hear the two of them laughing.

[28] When the Complainant emerged from the washroom, however, her nausea and anger seems to have subsided. She told Mr B that she wanted something to eat, and moved back to the kitchen area of the apartment. Mr. B obliged her, and fixed a plate of the rice and curry chicken that he had made earlier, which she stayed and ate. According to the Complainant’s explanation, she was very hungry from the ordeal and could not leave until she had eaten some of the food in the kitchen of Mr. B’s apartment.

[29] On the important question of whether the Defendant engaged in protected or unprotected sex with her, the Complainant was of little assistance. When specifically asked whether the Defendant ejaculated during intercourse, the Complainant equivocated: “I don’t know if it was in a condom or not.”

[30] By contrast, her response to Mr. B when he advised her of the Defendant’s medical condition was much more definitive. According to the Complainant, Mr. B sent her a text message advising her to have herself tested. That message apparently said, “Ha ha ha, [the Defendant] has AIDS”. According to Mr. B, the Complainant’s response was curt but to the point: “No way, he was wearing a condom.”

[31] The Complainant testified that when she was advised of the Defendant’s condition she was frightened. As she put it, “Someone with HIV, that’s not a joke.” It is obvious that she was also angry at the Defendant. She said that at first she thought it was a “sick joke”, but that the news tormented her until the medical tests she took turned up negative. She testified that, “For six months I went through hell. Not sleeping, not eating.”

[32] Like Mr. B, her anger at what she viewed as the Defendant’s deception was palpable, and understandable. The Complainant observed: “If I knew all of that [that the Defendant had HIV], things would have been done a lot differently.” That is one of the Complainant’s more believable statements. The Complainant’s testimony makes it doubtful that sex with the Defendant was anything but consensual. However, I have no reason to doubt that she would not have agreed to have sex with the Defendant had she been aware of his HIV status.

[33] I digress for a moment to note that at the preliminary inquiry the Complainant testified that she got a call from Mr. B about the Defendant’s condition a week or two after the incident. She indicated at the time that she was with the Defendant when she received Mr. B’s call. This, of course, accords with Mr. B’s recollection of that telephone exchange. However, at trial called this a “slip of the tongue.”

[34] It is, of course, odd that she could have experienced such a slip, since she had already testified that she did not even know the Defendant’s name before receiving the documents from the present court proceeding. It is highly unlikely that she would have inadvertently thought she was casually socializing with her supposed attacker who she viewed as treacherous, and whose name she professed not to know.

[35] The Complainant’s slip of the tongue is emblematic of her overall credibility. It reflects a contradictory statement that is only explained by a mindset clouded with anger. One sympathizes with the Complainant’s sense of betrayal; but it is impossible to accept her frequently contradicted assertion that, the HIV question aside, she did not consent to sex with the Defendant.

c) The Defendant’s version

[36] The Defendant’s story is not vastly different from Mr. B’s, although it differs in some detail. According to the Defendant, he met Mr. B at the coffee shop the morning of the incident in question, and accompanied Mr. B up to his apartment when the Complainant arrived.

[37] The Defendant indicated that once in the apartment, Mr. B gave him $20 to go buy beer and weed for the three of them to enjoy. He also indicated that he assisted Mr. B in preparing the curried chicken and rice, although he described the cooking as taking place when the Complainant was present in Mr. B’s apartment and not beforehand. The Defendant confirmed that the Complainant was hungry after having sex with him, and that she stayed for a helping of chicken and rice, which was seasoned, cooked, and served by Mr. B and the Defendant. He said that the Complainant ate the meal before leaving the apartment alone.

[38] As for the sexual activity, the Defendant confirmed that Mr. B attempted to have intercourse with the Complainant but was unable to do so, and so satisfied himself by performing oral sex on her. The Defendant also acknowledged that he had vaginal intercourse with the Complainant, and that the sex was consensual on everyone’s part. Of course, he said it in his rather low key, uncomplicated way; but in many ways the Defendant’s simplicity is what makes his testimony so difficult to undermine:

Q: You had vaginal intercourse with [the Complainant]?

A: We had sex.

Q: But when you say that, did that involve vaginal intercourse?

A: We had sex like people have sex.

Q: There were no discussions in the precursors to sex?

A: [Mr. B] suggested a threesome, [the Complainant] was up to it, so I joined in.

[39] The Defendant also confirmed Mr. B’s information that he was with the Complainant a week or two after the incident when Mr. B called her. The Complainant apparently had come to visit him at his mother’s house at the time. The Defendant described Mr. B as taunting him on the phone about his relationship with the Complainant. He also described the Complainant yelling angrily at Mr. B on the phone after being told the Defendant has “AIDS”. The Defendant testified that he never saw the Complainant again after that call.

[40] It should be noted that the Defendant was also a difficult witness at times. This was partly due to his defensiveness in the face of the accusations he faces, and partly due to his suffering some of the same symptoms as Mr. B. As indicated, the Defendant is also a schizophrenic who takes daily medication to keep his disorder under control. He speaks in a way which suggests a medicated slowness in his reactions and thoughts. It is not uncommon for him to misunderstand a question, especially if it is asked with a lengthy prelude. Typical cross-examination jargon such as “I’m going to suggest to you, sir”, make questions difficult for him to follow; accordingly, on the witness stand he gave a certain number of what appear to be confused answers.

[41] On the critical issue of condom use, the Defendant never wavered from his insistence that he used this form of protection. The Defendant is the only witness that gave firm evidence on this point since, as indicated, Mr. B was of two minds on the issue and the Complainant specifically said she does not know whether a condom was used. The Defendant, by contrast, insisted that since his doctor has frequently admonished him that he must always use a condom when having sex, he never deviates from that practice.

[42] In this respect, the Defendant’s simple approach served to bolster his credibility. He indicated that he has had HIV for about twenty years. He said that he goes to an HIV clinic at St. Michael’s Hospital for periodic checkups, and that there is a large bowl of condoms in the waiting area and he always takes a few to keep in his pocket.

[43] When questioned as to why he is so careful about having safe sex, the Defendant explained that his doctor has said that he must do this “for protection” in respect of HIV/AIDS. After a number of repeated questions of this sort, it became apparent that the Defendant was under the naïve impression that he needs to do this for his own protection, and not just for that of his sexual partners. This has made him extremely careful never to engage in unprotected sex. He always uses a condom because, in his mind, this is the one sure way of protecting everyone involved.

[44] Counsel for the Crown asked him repeatedly to explain why he wears a condom, and the Defendant seemed exasperated by the questions. His answers, however, revealed if not a deep comprehension of infectious disease and public health, a consistent commitment to condom use:

Q: Is it your position that you used a condom in order to protect [the Complainant]?

A: No. I always use a condom when I’m having sex.

Q: Surely you had a reason for using it that day.

A: A reason? I just always use a condom.

Q: And the reason you use a condom, sir?

A: What’s the reason you want me to give you? I just wear a condom because a condom is essential to wear, right?

[45] In fact, the Defendant seemed confused by the entire accusation leveled against him in respect of his failure to disclose his HIV status. He testified that his doctor has always told him that he must be sure to use a condom, and he has always followed that advice – including with the Complainant. His answers suggested that he was surprised that there was anything more to be done or anything to convey to a sexual partner. One typical exchange serves to illustrate the naïve credibility, if partial misunderstanding, with which the Defendant approached many of the questions he was asked:

Q: You didn’t give her a choice whether you would have intercourse with a condom or have intercourse without a condom?

A: Right. I wore a condom.

[46] That exchange was in its own way emblematic of the Defendant’s testimony. There is an element of error, an element of simplicity, and an element of innocent credibility, all bundled together in the Defendant’s answer. Whatever else one can take from the Defendant’s evidence, it is clear to me that he has it in his mind that he must use a condom whenever he has sex, and that he used one with the Complainant.

II. The obstructing justice charge

[47] The Defendant is accused of offering the Complainant a bribe of $500 from his disability support money if she tells the police that he used a condom during sex.

[48] This accusation comes entirely from the Complainant, who alleges that the Defendant called her on the same cell phone which Mr. B initially used to contact her over the chat line. She testified that since the Defendant’s phone number was registered in her cell phone, she could see on the cell phone that the Defendant’s name popped up on her screen some seven times before she finally answered one of his calls.

[49] The Complainant had no explanation for how it could be that the Defendant’s number was registered in the cell phone that Mr. B originally called, since that was supposedly her friend Amanda’s phone. She speculated that perhaps the Defendant had texted that phone, but the explanation made no sense. In any case, the Complainant also testified that she never even knew the Defendant’s name, so it is a mystery how she or Amanda – whoever Amanda is, since she never was produced as a witness – could have registered his name and number in the phone.

[50] Frankly, the Complainant’s story about the supposed bribery call from the Defendant is nothing short of ludicrous. It not only shows that the Complainant is willing to fabricate a tall tale in order to add one more coal to the fire she has set around the Defendant, it also further underscores her lack of credibility on the other charges the Defendant faces.

[51] The Complainant was asked to produce Amanda’s cell phone, but it turns out that the phone is now conveniently lost and so there is no record of the Defendant’s calls to that phone. The Complainant was also asked where Amanda herself can be found, but it turns out that Amanda is now conveniently lost as well. The Complainant testified that Amanda was her best friend with whom she was living for a time, but now Amanda has so totally disappeared that the Complainant doesn’t know where to look.

[52] Counsel for the Defendant suggests that there never was an Amanda and that the cell phone belonged to the Complainant and has now been discarded. He suggests that the entire story about the fictitious friend and cell phone was a ploy concocted by the Complainant to enable her to complain about telephone contact without having to prove it. The Complainant’s testimony leads me to believe that he is right.

[53] The Complainant testified that she spoke with the Defendant on Thursday, August 22, 2013, and that it was in that phone call that he offered her the alleged bribe. As it turns out, the Defendant did not know that he was facing any charges or any police investigation until the next day – Friday, August 23rd. Sgt. John Thibodeau, the Toronto police investigator in the case, testified that it was on August 23, 2013 that he managed to speak with the Defendant for the first time to tell him about the accusations against him.

[54] In other words, on Thursday, August 22nd, when the Complainant says the Defendant offered her a bribe if she would tell the police that he wore a condom, the Defendant did not even know that the police were looking into the matter. There was nothing to bribe about at that point.

[55] Moreover, the Complainant called Sgt. Thibodeau herself on Saturday, August 24th and arranged to meet him to give a statement about the allegations against the Defendant. She testified that she told Sgt. Thibodeau on the phone about the Defendant’s bribery attempt. However, on the videotaped interview that the Complainant gave the next day – i.e. on Sunday, August 25th – it is apparent that Sgt. Thibodeau was hearing the bribery allegations for the very first time. Indeed, those allegations were related by the Complainant as an afterthought, following the conclusion of the interview. Sgt. Thibodeau had to turn the videotape back on when she asked him if she could make one last point. The officer’s surprise at this final allegation of bribery is visible.

[56] What is truly remarkable about the obstructing justice charge is that the Complainant was taken seriously and the charge was brought at all. There are so many lies in the Complainant’s bribery story, so many contradictions and obvious fabrications, that the allegation can be dismissed out of hand.

III. Failure to disclose HIV status

[57] As I have already indicated, I do not believe that the Defendant forced sexual contact onto the Complainant without her consent. I find that the sex was consensual and that the Defendant used a condom. I also find that there was no attempt by the Defendant to bribe the Complainant or to otherwise obstruct justice.

[58] The one key fact that I do believe, however, is that the Defendant never disclosed to the Complainant or, for that matter, to Mr. B, that he is HIV-positive. In R v Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 SCR 371, the Supreme Court of Canada established that the failure to advise a sexual partner of one’s HIV status may constitute fraud vitiating consent under s. 265(3)(c) of the Criminal Code. Counsel for the Crown submits that is precisely what occurred here.

[59] As a prelude to this issue, I note that both the Complainant and Mr. B have been tested, and that neither of them contracted the HIV virus. That, however, does not end the inquiry. The question is, did the Defendant impose on them a “significant risk” of “serious bodily harm”, to us the Court’s words in Cuerrier.

[60] In R v Mabior, 2012 SCC 47, [2012] 2 SCR 584, the Supreme Court revisited how the law should approach sexual relations and HIV non-disclosure. In the process it made incremental changes to the applicable test. McLachlin CJ held, at para 84, that a “significant risk of serious bodily harm” connotes a “realistic possibility of transmission of HIV”. This, in turn, depends on the risk of transmission and the degree of harm. If there is no realistic possibility of transmitting HIV, then failure to disclose will not constitute fraud vitiating consent to sexual relations.

[61] The Court went on to hold, at para 94, that a realistic possibility of transmission of HIV is negated if (a) the accused's viral load at the time of sexual relations was low, and (b) condom protection was used. If both elements are present, a person who engages in sex has no obligation to disclose HIV status to his or her sexual partner.

[62] The Court made it clear that the usual burden of proof applies. “The Crown bears the burden of establishing the elements of the offence – a dishonest act and deprivation – beyond a reasonable doubt. Where the Crown has made a prima facie case of deception and deprivation… a tactical burden may fall on the accused to raise a reasonable doubt, by calling evidence that he had a low viral load at the time and that condom protection was used”: Mabior, at para 105. The Court of Appeal embellished on this in R v Felix, 2013 ONCA 415, [2013] OJ No 2857, at para 57, where it held that,

…once it was established in this case that: (1) the appellant was HIV-positive; (2) the appellant did not disclose his HIV-positive status prior to intercourse with the appellants; (3) the complainants would not have engaged in sexual activity with the appellant had they known of his HIV-positive status, and (4) the appellant failed to use a condom on the relevant occasions of intercourse, the Crown had established a prima facie case of a realistic possibility of HIV transmission.

[63] It is uncontroversial that the Defendant was HIV-positive and that he did not disclose this to the Complainant. I am equally certain that she would not have had sex with him had she known of his HIV status. I have already determined that the Defendant did indeed use a condom. Accordingly, the only question that remains is with respect to his viral load at the time of his sexual contact with the Complainant – i.e. late July 2013. The parameters of that analysis are set out by the Supreme Court in Mabior, at para 100:

The viral load of an untreated HIV patient ranges from 10,000 copies to a few million copies per millilitre. When a patient undergoes antiretroviral treatment, the viral load shrinks rapidly to less than 1,500 copies per millilitre (low viral load), and can even be brought down to less than 50 copies per millilitre (undetectable viral load) over a longer period of time. This appears to be scientifically accepted at this point…

[64] Dr. Mario Ostowsky, a professor of medicine at the University of Toronto and an expert physician who has been treating people with HIV since 1984 and doing research on HIV infection since 1994, testified for the defense. He reviewed the Defendant’s clinical records from the HIV clinic at St. Michael’s Hospital in Toronto. Those records demonstrate that although in the past the Defendant has gone for stretches at a time without treatment, in recent years – since June 2012 – he has been taking medication regularly and his viral load has significantly reduced.

[65] As Dr. Ostowsky described it, from June 2012 through January 2013, the clinic was adjusting the Defendant’s medication. His viral load became lower, although there were periods of up and down during this time as he encountered some resistance to the drugs. This was eventually straightened out, and in a test done in May 2013 – roughly two months before the incident in question – the Defendant’s viral load was undetectable.

[66] The Defendant’s mother, E.R., was called as a witness. She brought to court a number of pill boxes she found in the Defendant’s room. There were several empty pill boxes indicating prescription dates through the first half of 2013. These ended with the final pill box showing that the Defendant refilled his prescription for antiviral medication on August 16, 2013 – two to three weeks after the incident in issue and one week before he was arrested and kept in custody. This would indicate that the Defendant continued to take his medicine steadily, as prescribed, from May 2013 (when his viral load was so low it was undetectable) through the last week in July 2013 when he had his one-time sexual contact with the Complainant.

[67] Ms. E.R.’s evidence was that one of the pill boxes dated May 2013 was still partially full. Counsel for the Crown submits that this suggests that the Defendant was non-compliant with his regime of medication at that time, perhaps repeating the kind of failure to take his medication regularly to which he was prone in the past.

[68] Dr. Ostowsky pointed out, however, that the clinical notes show that some of the pills caused the Defendant diarrhea, and that he skipped taking them on occasion to give himself a rest. Dr. Ostowsky testified that this is commonplace and generally harmless. He also noted that the next test taken on the Defendant, in May 2014, showed his viral load continued to be undetectable, demonstrating that the Defendant had been consistent in taking the antiviral drugs throughout 2013-2014.

[69] Although the Defendant was non-compliant with the medicinal regime in years past, the clinical notes from St. Michael’s Hospital indicate that he has been compliant since June 2012. There is nothing in the evidence to suggest that this changed at any time since then, and there is evidence to establish that during the crucial July 2013 period the Defendant was on his proper medication and had an undetectably low viral load.

[70] Dr. Ostowsky concluded that, “Given that viral loads taken in May 2013 and the following May 2014 were undetectable, it is highly likely the viral load was undetectable during the event in question or at least <100 copies/ml.” This is well below the 1,500 copies per millilitre that the Supreme Court identified as a low viral load in Mabior.

[71] I conclude that the Defendant’s viral load was low at the time of his sexual relations with the Complainant. This, together with his use of a condom, leads me to conclude that having sex with the Complainant did not expose her to a “significant risk of serious bodily harm”. There was therefore no fraud and no vitiating of the Complainant’s consent to sex with the Defendant.

IV. Disposition

[72] I find the Defendant not guilty of all charges.

Morgan J.

Date: October 2, 2015