CITATION: R. v. Boone, 2016 ONSC 1626
COURT FILE NO.: CR-10-SA5086
DATE: 2016/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Meaghan Cunningham, for the Crown
- and -
Steven PAUL Boone
Ian Carter, for the Accused
Accused
SENTENCING SUBMISSIONS HEARD: October 26, 28 and 29, 2015 in Ottawa, Ontario
Madam Justice B. R. Warkentin
Reasons on Sentence
[1] For a period of about four months from January to April 2010, Mr. Boone engaged in sexual relations with a number of young men without disclosing that he was HIV positive.
[2] This is, however, more than an HIV non-disclosure case. It is about someone who first deliberately set out to contract HIV and upon learning of his HIV positive status, refused to take antiretroviral medication, notwithstanding his elevated viral load scores. Mr. Boone then preyed upon young men, whom he believed to be HIV negative, with the intent of infecting them with HIV.
[3] On October 31, 2012, after a three week trial, Mr. Boone was convicted by a jury of 3 counts of attempted murder, 3 counts of aggravated sexual assault, 2 counts of administering a noxious thing (semen infected with the HI virus containing a high viral load score) and one count of attempting to administer a noxious thing as it pertained to 4 complainants. Mr. Boone was acquitted of two counts of aggravated sexual assault against two other complainants.
[4] By its verdicts, in particular the attempted murder convictions, the jury found that Mr. Boone engaged in sexual activities with the intention of infecting his sexual partners with HIV and that he intended for them to die from this infection.
[5] In a second, judge alone trial regarding a 7th complainant, Mr. Boone, while acquitted of attempted murder, attempted aggravated sexual assault and attempt to administer a noxious thing, was convicted of failure to comply with a probation order. This charge was conceded by Mr. Boone because he was on probation when he was charged with the offences for which he was convicted in the jury trial.
[6] I will therefore be sentencing Mr. Boone on all outstanding convictions in this decision; however, my reasons pertain to the convictions from the jury trial of the more serious offences.
[7] The Crown is seeking the imposition of a global 18-year sentence of incarceration less the time Mr. Boone has spent in pre-sentence custody. In addition, the Crown has applied, with the consent of the Attorney General, for a finding that Mr. Boone is a long-term offender and seeks a supervision order of 10 years to follow the period of incarceration.
[8] The Defence has suggested that the appropriate sentence is one of ten years, less credit for the time Mr. Boone has served on the basis of credit of 1.5:1 days. The Crown does not oppose the calculation of pre-sentence credit on this basis.
[9] The Defence submitted that this is not a case where a long-term offender designation and the imposition of a period of supervision should be imposed.
Background of the Offences
[10] The evidence at trial consisted of testimony from the complainants as well as others who had interactions with Mr. Boone between January and May, 2010. In addition to this testimony, numerous volumes of chat logs and text messages sent and received by Mr. Boone from 2009 and 2010 were entered into evidence.
[11] The convictions were with respect to four complainants (there is a non-publication ban on their identities, therefore only their initials have been used). The jury found that Mr. Boone was guilty as follows:
a) Complainant #1 (D. S.), attempted murder, aggravated sexual assault and administering a noxious substance.
b) Complainant #2 (M. C.), attempted murder, aggravated sexual assault and administering a noxious substance.
c) Complainant #3 (B. C.), aggravated sexual assault.
d) Complainant #4 (M. B.), attempted murder and attempt to administer a noxious substance.
[12] The evidence of Mr. Boone’s communications on the chat logs indicated that Mr. Boone deliberately became infected with HIV in 2009 by his then partner/fiancé. Mr. Boone was 28 years old when he was diagnosed with HIV in the fall of 2009.
[13] Mr. Boone used various social media chat rooms to meet and connect with other gay men. In most of those chats he presented himself as an individual seeking a relationship or a sexual interaction. Most of these chat rooms or websites were dating sites for gay men. Mr. Boone met the Complainants 1 - 3 on these dating sites between January and April 2010. Mr. Boone either claimed to be “clean”; meaning he had no sexually transmitted infections or diseases (STIs or STDs), that he was HIV negative or he did not mention his HIV status.
[14] At the same time that Mr. Boone was communicating with the three complainants on the dating sites described above, Mr. Boone was engaged in other communications that were much more explicit in different chat rooms where “bug-chasers”, individuals who are either seeking to become infected with HIV or spread HIV to others, discussed their sexual exploits as well as their expectations from sexual liaisons. Mr. Boone met Complainant #4 in one of these chat rooms.
[15] The chats that were attributed to Mr. Boone on the “bug-chaser” sites included statements that indicated he became sexually aroused by “stealth pozzing” or infecting someone with HIV without their knowledge. Mr. Boone also bragged about how he lied to his partners about his HIV status and about his success in infecting at least one of his sexual partners. The comments about infecting one of his partners coincided with the period that Mr. Boone and Complainant #1, were engaged in a short relationship. Complainant #1 later tested positive for HIV.
[16] Complainants #2 and #3 did not become infected with HIV. Mr. Boone’s sexual interactions with Complainants #2 and #3 were significantly less involved than his sexual interactions with Complainant #1. He had unprotected anal intercourse with Complainant #2 on two occasions on the same day and used a condom during intercourse with Complainant #3.
[17] Complainant #4 was already HIV positive when he engaged in unprotected anal intercourse with Mr. Boone; however, Complainant #4 led Mr. Boone to believe that he was HIV negative in order to increase the sexual arousal of their interaction. Complainant #4 admitted at trial that Mr. Boone informed him he was HIV positive prior to engaging in unprotected anal intercourse.
[18] It was the Defence’s theory of the case that these explicit chats in the “bug-chaser” chat rooms were in the nature of sexual fantasy discussions only. He argued that because a person engages in sexual fantasies does not establish that they acted on those fantasies. The Defence also argued that the Crown had not proven beyond a reasonable doubt that Mr. Boone was the one who actually infected Complainant #1 with HIV.
[19] Mr. Boone continues to claim that he is innocent of the charges that led to these convictions.
[20] Because this case was tried before a jury, we have only the convictions on which to understand the jury’s conclusions. It was necessary for the jury to find that when Mr. Boone had unprotected anal intercourse with Complainants #1, #2 and #4 that Mr. Boone intended to infect his sexual partners with HIV and, that by doing so, Mr. Boone intended to kill them.
[21] It was not necessary for the jury to find that Mr. Boone intended to infect his partners in order to convict of aggravated sexual assault. By the time this case proceeded to trial, the Supreme Court of Canada had rendered its decision in R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584 [Mabior]. In Mabior at paragraph 4, the Court found that a person may be convicted of aggravated sexual assault under section 273 of the Criminal Code if he fails to disclose his HIV positive status before engaging in sexual activity where there is a realistic possibility of transmission of HIV. The Court, at paragraph 104 confirmed that:
“To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant's consent to sexual intercourse was vitiated by the accused's fraud as to his HIV status. Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV. …”
[22] The admissions at trial confirmed that Mr. Boone’s viral load count was high at the time that he had anal intercourse with these four complainants. Complainants 1 - 3 all testified that Mr. Boone lied to them by telling them he was HIV negative. They all stated that had they known he was HIV positive, they would not have engaged in sexual relations with Mr. Boone.
[23] At the conclusion of its investigation, the police charged Mr. Boone with four counts of attempted murder with respect to four of the seven complainants. Following a preliminary inquiry, the preliminary inquiry judge discharged Mr. Boone on the four counts of attempted murder.
[24] The Crown then brought an application seeking certiorari and mandamus on the four attempted murder counts. On the return of the Crown application, Mr. Justice A. Roy quashed the order discharging Mr. Boone on the attempted murder charges and directed the preliminary inquiry judge to commit Mr. Boone for trial on those counts.
[25] Mr. Boone’s appeal to the Ontario Court of Appeal was dismissed (R. v. Boone, 2012 ONCA 539). In dismissing the appeal, Justice J. M. Simmons made the following comments and findings at paragraphs 32 through 41:
32 In this case, in my view, the preliminary inquiry judge committed jurisdictional error both by: i) considering the evidence in a piecemeal fashion and making findings without considering the whole of the evidence; and ii) going beyond the limited weighing of inferences permissible at the preliminary inquiry stage.
33 The preliminary inquiry judge began his analysis by finding that it would be unreasonable for a trier of fact to draw an inference that the appellant had a specific intent to kill from the evidence that supported an inference of an intent to infect. In reaching this conclusion, the preliminary inquiry judge relied on three main factors:
• although reduced life expectancy may be a consequence of being diagnosed with HIV, the diagnosis is no longer the automatic death sentence it was 15 years ago;
• there is an element of immediacy between the actus reus and the intended consequences in cases such as car crashes or unsuccessful shootings that is not present in this case, where there was evidence only of an intent to infect relatively young men with HIV;
• death is only a possible consequence of contracting HIV.
34 In effect, the preliminary inquiry judge made a finding that because HIV merely reduces life expectancy and does not cause death immediately, the evidence that was capable of giving rise to an inference that the appellant had an intent to infect was incapable of supporting an inference that he had the specific intent to kill.
35 However, in reaching this conclusion, the preliminary inquiry judge relied primarily on the medical evidence and failed to consider the whole of the evidence, including, in particular, the evidence in the text messages and internet chat logs that were capable of demonstrating what was in the appellant's mind.
36 If the appellant believed that by infecting his sexual partners his conduct would, in the absence of intervening circumstances that might cause their death, inevitably kill them, in my view, it would be open to a trier of fact to find that he possessed a specific intent to kill. In such circumstances, the fact that death might not ensue for many years would be irrelevant.
37 Further, after finding that it would be unreasonable for a trier of fact to draw an inference that the appellant had the specific intent to kill from the evidence that supported an inference of an intent to infect, the preliminary inquiry judge then went on to discount the significance of some of the appellant's text and chat messages that were capable of giving rise to an inference that the appellant believed there were potentially fatal consequences of HIV. Specifically, the preliminary inquiry judge pointed to other texts and chats -- and the appellant's doctor's evidence -- that were capable of supporting an inference that the appellant had a relatively optimistic outlook about the course of the disease.
38 Thus, in the face of competing inferences about the appellant's state of mind arising from the text and chat messages, the preliminary inquiry judge preferred the inferences favourable to the defence over those that were favourable to the Crown. In doing so, the preliminary inquiry judge exceeded his jurisdiction.
39 Moreover, by failing to consider the evidence in the text messages and internet chat logs when considering the question of whether a finding of an intent to infect could support an inference of a specific intent to kill, and by impermissibly weighing the inferences available from the text and chat messages, the preliminary inquiry judge committed further jurisdictional error.
40 Having regard to the content of the text messages and internet chat logs, in my view, it will be a matter uniquely within the province of the trier of fact to determine the appellant's intention.
41 Accordingly, I would not give effect to this ground of appeal.
[26] Both Crown and Defence counsel acknowledged that there is no precedent for sentencing someone for attempted murder for intending their death by intending to infect them with HIV.
Sentencing vs Long-Term Offender
[27] The Supreme Court of Canada, in R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, clarified the trial judge’s role when considering a sentence where there is an application to find an offender a long-term offender.
[28] Justice LeBel, for the majority provided the following direction to trial judges at paragraph 49:
[I]t is important to remain faithful to the distinction between sentencing and the imposition of a supervision period. A judge who confuses these two processes risks straying from the normative principles and the objectives of sentencing. A judge who does so would also neglect the specific objective of the procedure for finding an offender to be a long-term offender, which requires the application of different principles. Parliament intended that the judge determine the appropriate sentence first. After doing so, the judge is to ask, in light of Parliament’s objective of protecting the public, whether a period of supervision is warranted. The period of community supervision cannot therefore be equated with a new period of deprivation of liberty consecutive to the one resulting from the sentence.
[29] It is therefore my role to first consider the appropriate sentence for the offences for which Mr. Boone has been convicted.
Circumstances of Mr. Boone
[30] Mr. Boone was born in 1981 to a 19 year old mother and 18 year old father. He was raised primarily by his maternal grandparents. He became aware he was bisexual when he was around 13 years of age and then identified publicly as homosexual at around age 22.
[31] Mr. Boone has a high school diploma and attended one year of a three year Law and Justice Program at Laurentian University. Before his arrest for these charges, Mr. Boone held a variety of jobs. He was let go from the majority of them. During the four month period before his arrest he was unemployed.
[32] Mr. Boone was diagnosed as being HIV positive in October 2009. He claimed to be engaged to the man from whom he contracted the virus. His partner ended the relationship shortly after Mr. Boone was diagnosed with HIV. Mr. Boone chose not to begin antiretroviral medication to suppress his viral loads until September 2010, some months after being incarcerated while awaiting trial.
[33] Throughout his 20s, until his arrest, Mr. Boone consumed alcohol to excess regularly to the point of blacking out. He had a variety of encounters with police when impaired.
[34] In addition to his arrest for the offences that led to his convictions in this proceeding, Mr. Boone was also arrested for a series of events in the Kitchener-Waterloo area in May 2010. Mr. Boone was charged separately for those offences and convicted of three counts of aggravated sexual assault. On May 2, 2013, Mr. Boone was sentenced to four years less his pre-sentence custody from 2010 for those offences. Mr. Boone has served that sentence and remains in custody while awaiting this sentence.
[35] The time between his convictions in October 2012 and this sentencing decision was due to a variety of factors, primarily because of the Crown’s application to designate Mr. Boone a Long-Term Offender and Mr. Boone’s requests for time to prepare for this hearing.
[36] Mr. Boone was assessed by Dr. A.G. Ahmed at the Royal Ottawa Hospital in 2013 for the purposes of ascertaining whether or not he should be found to be either a dangerous or long-term offender. I will address this assessment more fully when considering the Crown’s application to have Mr. Boone declared a long-term offender.
General Principles of Sentencing
[37] Section 718 of the Criminal Code, R.S.C. 1985, c. C-46, sets out a list of principles and objectives that applies when a Court must determine a fair and just sentence. That section states that any sentence must reflect one or more of the following objectives:
• To denounce unlawful conduct;
• To deter the offender and other persons from committing crimes;
• To separate offenders from society where necessary;
• To assist in rehabilitating offenders;
• To provide reparations for harm done to victims or to the community; and
• To promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[38] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 81, Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”
[39] The principle of deterrence is set out in section 718(b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.
[40] It is the task of the sentencing judge to assign the relative weight to the particular aspects of the case before the Court so that the sentence is shaped in a way that is specific to the accused while following a uniform approach.
Expert Evidence Regarding HIV Transmission
[41] At trial, both the Crown and Defence called experts to testify about the transmission of HIV and the effects of living with HIV; Dr. Robert Remis on behalf of the Crown and Dr. Mark Tyndall on behalf of the Defence.
[42] Dr. Remis, a professor at the Dalla Lana School of Public Health at the University of Toronto works in the fields of epidemiology and infectious diseases where he has published extensively on HIV and epidemiology. Much of Dr. Remis’ work has been on the rates of transmission of HIV and AIDS among gay men, female sex workers as well as the transmission of other sexually transmitted infections related to HIV.
[43] Dr. Tyndall, the head of the Division of Infectious Diseases at the University of Ottawa has written extensively in the field of HIV. Dr. Tyndall also runs a clinical practice in which he treats patients with HIV. Dr. Tyndall’s research for the 5 to 10 years prior to his testimony at trial was primarily with intravenous drug users and female sex workers. His clinical practice includes gay men.
[44] Both Dr. Remis and Dr. Tyndall agreed that the risk of transmission of HIV varied depending on a number of factors. They agreed that those at highest risk of contracting HIV were individuals who engaged in unprotected receptive anal sexual intercourse with a partner who was HIV positive and not taking the antiretroviral drugs.
[45] Dr. Remis testified that as a result of the introduction of HIV treatment options in the form of antiretroviral drugs (now referred to as “highly active antiretroviral therapy” or “HAART”) around 1996 and 1997, the mortality rate for those living with HIV has dropped drastically – a decrease of between 80 – 90 percent.
[46] Notwithstanding the benefits of HAART, it was Dr. Remis’ evidence that based upon statistical average, the life expectancy of persons who receive treatment for HIV is reduced by an average of 12 years. He also testified that a young person who becomes infected would have a life expectancy that would be reduced by more than 12 years due to a greater risk of resistance to the HAART and related complications.
[47] It was also Dr. Remis’ opinion, after having reviewed Complainant #1’s sexual interactions between the period of time he was sexually active with Mr. Boone and when he tested positive for HIV, that it was Mr. Boone who infected him. Complainant #1 was only 17 years of age when he became HIV positive.
[48] Dr. Tyndall testified that since the advent of antiretroviral drugs, HIV is no longer the death sentence it once was. He confirmed that many HIV positive individuals can expect to live long, healthy lives. Antiretroviral drugs have considerably improved the prognosis for people with HIV, who may now live with HIV as a long-term, manageable condition instead of a fatal illness.
[49] Both experts agreed that individuals receiving treatment for HIV drastically reduce their risk of passing HIV to their sexual partners. They acknowledged that HIV-related stigma and discrimination cause some individuals living with HIV to be reluctant to take an HIV test, to take antiretroviral drugs, or to disclose their HIV status, therefore contributing to an increase in the likelihood of transmitting HIV.
[50] Both Dr. Tyndall and Dr. Remis testified that without HAART treatment, HIV will progress to AIDS and that it is almost always fatal within about 2 to 5 years of a person developing AIDS. They also confirmed that in Canada individuals continue to die from HIV related illnesses and AIDS.
Mitigating and Aggravating Factors
[51] To assist a trial judge in arriving at a “just and appropriate punishment”, Parliament has enacted section 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence.
[52] Judges are required to consider the principle of restraint pursuant to section 718.2(d) when the offender is facing his first sentence of imprisonment. Similarly, the Judge must consider the principle of totality so that any combined sentence is not unduly long or harsh.
[53] Counsel for Mr. Boone submitted that there were a number of mitigating factors in his favour that include:
a) Mr. Boone must be treated as a first offender. The convictions he received for the offences in Kitchener-Waterloo cannot be considered as prior offences because they were contemporaneous with the Ottawa offences.
b) Prior to these offences, Mr. Boone had only a conditional discharge, which by its nature is not a conviction once discharged.
c) Mr. Boone produced a number of letters of support, showing that when released there are individuals who will assist him with integrating back into the community.
d) Once Mr. Boone began taking his antiretroviral medication in 2010 he has taken it consistently for the past five years.
[54] Crown counsel agreed that for the purposes of this sentence, Mr. Boone should be viewed as a first offender. She disagreed however, with the Defence characterization regarding the mitigating factors and argued that there are significant aggravating factors that the Court must consider.
[55] With respect to the mitigating factors, Crown counsel argued that there is no guarantee that Mr. Boone will continue with his antiretroviral medication once he is released from prison, or even while he is in prison. While in prison, he is handed his medication every day by the medical staff. When no longer incarcerated, Mr. Boone will have to manage his own treatment.
[56] Crown counsel also noted that a number of the letters of support were from individuals or on behalf of organizations that addressed the political and societal ramifications of incarcerating someone for an offence related to HIV and that these letters should not be provided any weight.
[57] Crown counsel acknowledged that Mr. Boone’s claim of innocence, while not an aggravating factor in itself, must be examined in the context of his conduct. She noted that in order for the jury to reach the verdict of attempted murder, they had to find that Mr. Boone intended to infect his sexual partners with HIV. She also commented on my decision in the second trial, a trial that imported all of the evidence from the first jury trial, in which I found that Mr. Boone was acting with the intention of infecting his sexual partners. It was her position therefore, that Mr. Boone’s conduct in the commission of these offences may be viewed as an aggravating factor, or a series of aggravating factors.
[58] Counsel for the Crown then addressed several factors that she considered to be aggravating as follows:
a) The evidence from the chat logs demonstrated that Mr. Boone was sexually aroused by the possibility of infecting other young men with HIV and he bragged about his ability to convince young men to engage in unprotected sex.
b) Mr. Boone commented in his on-line chats on the more explicit “bug-chaser” websites that he was aroused by “stealth pozzing younger boys and marking them for life”. He appeared to take pleasure in knowing that by being infected unknowingly, the infection would have an opportunity to gain a foothold and those individuals might then infect others.
c) Mr. Boone manipulated others by lying about his HIV status and coercing his partners to engage in unprotected anal sex by convincing them that he was “clean”. Mr. Boone described in detail how he accomplished this in his chat logs. The timing of those chats and the details he provided corresponded with the sexual liaisons he was having with the complainants.
d) The evidence from the chat logs also demonstrated that Mr. Boone understood the various factors that would make transmission of HIV more successful. The most significant factor was declining to take antiretroviral medication. Mr. Boone understood that high viral loads and repeated anal intercourse increased the likelihood of infecting his partners.
e) There was a pattern of conduct. From the time he learned of his HIV positive status until his arrest, Mr. Boone spent much of his time luring young, vulnerable men to engage in unprotected anal sex with him.
f) The fact that Complainant #1 was only 17 years old is a statutory aggravating factor. In addition, the fact that Complainant #1 later tested positive for HIV is a significant aggravating factor.
g) Finally, the Crown argued that Mr. Boone’s conduct constituted an abuse of a position of trust contrary to Section 718.2(a)(iii) of the Criminal Code because he deceived his sexual partners about his HIV status. This deception resulted in a significant emotional and physical impact on Complainants 1 - 3 and should be considered an aggravating factor.
[59] Both Crown and Defence agreed that the sentences to be imposed for the four complainants should be consecutive and not concurrent and that I should have regard to the totality principle as articulated by the Supreme Court of Canada in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, and as set out in section 718.2 of the Criminal Code when considering the global sentence to be imposed. They also agreed that the sentence to be imposed for Complainant #1, the 17 year old who contracted HIV, should be the most significant of the sentences.
[60] The Crown made the following submissions on the length of sentence for each complainant:
a) Complainant #1: Attempted Murder - 10 years
Aggravated Sexual Assault - 8 years (Concurrent)
Administer a Noxious Thing - 4 years (Concurrent)
b) Complainant #2: Attempted Murder - 8 years (Consecutive)
Aggravated Sexual Assault - 5 years (Concurrent)
Administer a Noxious Thing - 4 years (Concurrent)
c) Complainant #3: Aggravated Sexual Assault - 4 years (Consecutive)
d) Complainant #4: Attempted Murder - 4 years (Consecutive)
Attempt to Administer a Noxious Thing - 4 years (Concurrent)
e) Breach of Probation: 1 year (Concurrent)
[61] In total, the Crown’s submission would amount to a 26 year sentence. The Crown proposed that when considering the totality principle, a just and appropriate sentence would be a global sentence of 18 years.
[62] The Defence position on sentence with respect to the four complainants was that the two convictions of “administer a noxious thing” and the one conviction of “attempt to administer a noxious thing” should be stayed pursuant to the principle set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 [Kienapple]. In reviewing my endorsements on the indictment, the Crown had conditionally stayed these convictions on January 3, 2013.
[63] Regarding the remainder of the convictions, counsel for the Defence proposed the following:
a) Complainant #1: A total sentence of between 4-5 years. The Defence agreed that the sentence with respect to this complainant should be higher than the sentences of the other complainants because of the number of sexual interactions. It was the Defence position that it had not been proven that Mr. Boone infected this complainant with HIV.
b) Complainant #2: A total sentence of 2-3 years consecutive because of the brief, but unprotected, sexual interaction.
c) Complainant #3: A sentence of 2 years consecutive for aggravated sexual assault.
d) Complainant #4: Notwithstanding that Mr. Boone was convicted of attempted murder with respect to this complainant, it was the Defence position that a 1 year consecutive sentence was appropriate given the unusual set of facts that related to this complainant who was already HIV positive.
e) Breach of Probation: 30 days (Concurrent).
[64] The Defence position would result in a sentence of between 11 and 13 years. In considering the totality principle, the Defence argued that a just and appropriate sentence would be 10 years.
Analysis and Sentence
[65] While the spread of HIV is first and foremost a public health issue, it is when people with HIV engage in deliberate or reckless behaviour that endangers the health and wellbeing of others that such behaviour will fall within the ambit of the criminal justice system.
[66] Both Crown and Defence confirmed that there has never been a case in Canada where someone has been tried or convicted of attempted murder for deliberately spreading or attempting to spread HIV. Therefore, in crafting a sentence, I am guided by those authorities where sanctions were imposed for aggravated sexual assault where there was a realistic possibility of transmission of HIV.
[67] In those authorities, the dominant objective in imposing a sentence was the denunciation of the conduct, the deterrence of both the offender being sentenced as well as others and the separation of the offender from society in order to protect the public. The other sentencing objectives of rehabilitation, the provision of reparations and promoting a sense of responsibility in the offender are of a lesser weight: see R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371, at paras. 141-142.
[68] I have reviewed all of the cases that counsel referenced where convictions of aggravated sexual assault were entered and offenders failed to disclose their HIV status. The sentences in the case law varied widely. It was clear that four factors are consistently taken into consideration when determining the length of sentence:
a) the number of sexual encounters in which the offender engaged;
b) the number and type of sexual liaison with each complainant as well as the age and/or vulnerability of the complainant;
c) the level of disregard by the offender for his or her sexual partners; and
d) whether or not HIV was transmitted. Transmission of HIV is considered a significant aggravating factor.
Summary of Relevant Sentencing Decisions
[69] As already described, the Supreme Court of Canada in Mabior determined that a person infected with HIV may be convicted of aggravated sexual assault if there was a realistic possibility of transmission of HIV to their sexual partner(s).
[70] As part of that determination, Chief Justice B. McLachlin for the Court made the following comments about HIV infection at paragraphs 17 and 92 respectively:
STDs, like HIV, are extremely serious, involving permanent and life-altering symptoms, and in some cases death. …
It is enough to note 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. …
[71] The Crown referred me to the case of R. v. Aziga, 2011 ONSC 4592 [Aziga], where Mr. Aziga was convicted of two counts of first degree murder, ten counts of aggravated sexual assault and one count of attempted aggravated sexual assault with respect to 11 female victims for engaging in reckless conduct regarding his HIV status and his sexual interactions with women.
[72] Of those 11 victims, two died from malignancies associated with HIV and five other victims were infected with HIV. The Court determined that Mr. Aziga acted deliberately in full awareness of his condition and with the foresight of the probable consequences. He lied to his sexual partners about his HIV status and disregarded warnings from public health officials to inform his partners of his HIV infection or to ensure he was using protection. Mr. Aziga received two life sentences for the first degree murder convictions and was declared a dangerous offender regarding the remaining offences for which he was convicted.
[73] In a recent case, R. v. Ralph, 2014 ONSC 2800 [Ralph], Madam Justice N. J. Spies convicted Mr. Ralph with respect to four female complainants with whom Mr. Ralph had varying sexual interactions ranging from between two sexual encounters to a relationship of two and a half years. Two of the complainants tested positive for HIV although Justice Spies found that only one of the women’s infections could be causally connected to Mr. Ralph. Justice Spies sentenced Mr. Ralph to four consecutive sentences ranging from five years to 1.5 years. The total sentence would have resulted in a period of incarceration of 13.5 years, which she reduced to 10.5 years after consideration of the totality principle.
[74] The Ontario Court of Appeal in R. v. Felix, 2013 ONCA 415, 298 C.C.C. (3d) 121 (Ont. C.A.), upheld a 5.5 year sentence for an offender who had sexual relations with two female complainants, neither of whom contracted HIV. Mr. Felix had a number of unprotected sexual interactions over the course of one night that included unprotected anal intercourse with one of the complainants who was only 16 years of age at the time. Mr. Felix also had sexual relations with the second complainant over a three month period; one of those was with the use of a condom and four were with no protection used.
[75] The Court found that Mr. Felix’s actions were callous and reflected a significant degree of indifference to the consequences of his actions for two women who were found to be vulnerable. The fact that neither contracted HIV was considered irrelevant.
[76] It is now also recognized that even brief sexual encounters may be considered an abuse or breach of trust where there is deceit involved. The Supreme Court of Canada in Mabior made the following observation at paragraph 48:
“In keeping with the Charter values of equality and autonomy, we now see sexual assault not only as a crime associated with emotional and physical harm to the victim, but as the wrongful exploitation of another human being. To engage in sexual acts without the consent of another person is to treat him or her as an object and negate his or her human dignity.”
[77] The Court of Appeal in R. v. McGregor, 2008 ONCA 831, 94 O.R. (3d) 500 at para. 30, found that although Mr. McGregor did not occupy a traditional position of trust in relation to his girlfriend, “any intimate relationship of the type entered into by the respondent with M.M. 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”.
[78] These cases, while helpful, do not address a scenario where the person convicted was intentionally attempting to infect and murder his sexual partners with HIV. In order to more fully appreciate the difference between an individual whose actions are callous and indifferent versus someone acting deliberately and with the intent to infect others, I have set out some examples of the statements Mr. Boone made to others, either in text messages or in on-line chat rooms.
[79] After his own diagnosis, Mr. Boone sent a number of text messages to his former boyfriend, whom he described as his fiancé. It was his fiancé who infected Mr. Boone with HIV. In those test messages Mr. Boone made certain comments about his HIV infection and the risks of being HIV positive:
• Mr. Boone told his ex-fiancé that he had made the ultimate sacrifice and risked his life (by agreeing to become infected with HIV).
• Mr. Boone declared that he would not take the antiretroviral medication and would instead just die.
• Mr. Boone told his ex-fiancé that he would be charged with attempted murder as a result of causing Mr. Boone’s infection.
[80] In his chat room conversations on the explicit “bug-chaser” sites before and during the period Mr. Boone was seeking sexual partners, including the four complainants, Mr. Boone made a number of graphic statements that demonstrated his intention as follows:
• Mr. Boone stated a number of times that: “it is hot fucking boys bare (without a condom) and knowing that my load will change their lives forever and that my DNA will be inside them forever.”
• He described wanting to “convert” others (infect his partners with HIV), both stealthily (without their knowledge) and with their knowledge.
• Mr. Boone spoke about holding off taking medication because, having only recently been diagnosed as HIV positive, he believed he was more potent and if he went on medication he would not be able to “knock up” (infect) others.
• At several points throughout the chat logs Mr. Boone described HIV as something that will not kill you; that it is a disease that is managed and something one lives with.
• Mr. Boone described HIV as being beneficial, for example that it meant a higher sex drive, higher intelligence, ability to get disability income and making one “hotter” as a person and that it makes one part of an elite society.
• Mr. Boone spoke about knowing someone who died at age 25 from complications of HIV infection; acknowledging that the person did not take care of himself and was an intravenous drug user.
• In another chat someone speaking with Mr. Boone warned him that he could be charged with attempted murder for having unprotected sex without disclosing his HIV positive status.
[81] While there was a significant amount of evidence that Mr. Boone intended to infect his sexual partners with HIV, there were no statements that he wanted to kill his partners, other than the statements he made as I have set out above.
Sentence re: Complainant #1
[82] It was the Defence position that the Crown had not proven beyond a reasonable doubt that it was Mr. Boone who infected this complainant and as such his HIV positive status should not be considered an aggravating factor. I do not accept the Defence position on this issue. The evidence was very clear that Mr. Boone actively sought to infect Complainant #1 through numerous sexual encounters over a period of about 10 days. Mr. Boone himself, in his chat room discussions described in detail these encounters and the likelihood that he had infected this 17 year old young man. Complainant #1’s other sexual encounters prior to discovering his HIV positive status were either with HIV negative men or with the use of a condom where the HIV status of the person was unknown. Complainant #1 had only one sexual interaction with a person whose HIV status was unknown where the interaction was without a condom.
[83] Dr. Remis was not challenged when he provided his opinion that it was Mr. Boone who had transmitted HIV to Complainant #1. Dr. Remis based his opinion upon the number of sexual interactions with Mr. Boone as well as the other interactions that occurred between Complainant #1 and other men before he tested positive for HIV.
[84] I agree with Justice Spies in Ralph when she stated at paragraph 103 that:
[T]he 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. …
[85] I therefore find that it was Mr. Boone who infected Complainant #1. As such, there are significant aggravating factors due to his vulnerability as a 17 year old and the fact that he will now carry HIV for the remainder of his life. Dr. Remis noted that as a result of having to be on antiretroviral medication for the rest of his life, he may encounter complications that result in the virus becoming drug resistant and increasing his risk of infection, cancers and other diseases that are common when one has a low resistance to infection.
[86] Complainant #1’s life expectancy had been greatly reduced because of this infection. According to Dr. Remis, because of his young age, his life expectancy will be reduced by more than 12 years and he will never be able to enjoy life to its fullest. He will live in an environment where many countries still stigmatize and discriminate against those living with HIV. He will have difficulties with other relationships and he will live in the shadow of this infection in all aspects of his life.
[87] It is difficult to comprehend that a person would act in such a deliberate fashion as Mr. Boone did when engaging in sexual intercourse with Complainant #1. The evidence before the Court was that Mr. Boone knew Complainant #1’s age. Mr. Boone told his roommate that he was not having sex with this complainant because he was only 17. When the relationship ended, the roommate contacted Complainant #1 to inform him that Mr. Boone was HIV positive and advised him to get tested as soon as possible.
[88] The evidence established that there had been nine incidents of anal intercourse over a two week period with Mr. Boone and Complainant #1. In the chat rooms, Mr. Boone bragged about his ability to “convert” a 17 year old to being HIV positive by repeated sexual encounters. Mr. Boone’s conduct was calculated and ruthless. At all times during his interaction with this complainant, Mr. Boone acted with the intention of causing him harm that could end his life.
[89] The offence of attempted murder is therefore most germane with respect to this complainant. Attempted murder has no minimum sentence and the maximum sentence is one of life in prison. In considering an appropriate sentence, I accept the Crown’s submission of a sentence of 10 years for attempted murder is appropriate with respect to this complainant.
[90] In the case law supplied by the Crown and the Defence, the sentences for aggravated sexual assault where the complainant becomes infected with HIV are between 5 and 6 years, with the exception of Aziga in which Mr. Aziga was declared a dangerous offender.
[91] None of those cases have the same deliberate and malicious conduct that Mr. Boone displayed. In considering the aggravated sexual assault conviction regarding Complainant #1, I find that the appropriate sentence is 8 years, to be served concurrently with the sentence for Attempted Murder.
[92] The conviction of Administer a Noxious Thing is stayed pursuant to the Kienapple principle.
Sentence re: Complainant #2
[93] On April 30, 2010 Mr. Boone and Complainant #2 met on a website for gay men looking to meet for casual sex. Complainant #2 had recently moved to Ottawa and was interested in a date for sex without any commitment. After chatting on the website for about a half hour, they agreed to meet for a sexual liaison. Complainant #2 was also only 17 years of age, although there was no evidence that Mr. Boone was aware of his age.
[94] Complainant #2 testified that he asked Mr. Boone at least 3 times if he was “clean” and Mr. Boone assured him that he was. Complainant #2 testified that he accepted Mr. Boone’s word and they agreed to have oral and anal intercourse. The evidence was that they engaged in anal intercourse on two occasions on the same date without a condom and that Mr. Boone ejaculated inside Complainant #2.
[95] As with Complainant #1, the comments made by Mr. Boone in the chat rooms frequented by those describing themselves as “bug-chasers”, demonstrated that he was actively attempting to infect Complainant #2 with HIV.
[96] Complainant #2 discovered that Mr. Boone was HIV positive after their encounter when Mr. Boone’s roommate contacted him and suggested he get tested. When Complainant #2 confronted Mr. Boone, Mr. Boone again lied and said he was negative and accused his roommate of lying. Complainant #2 testified about the months he spent thereafter being tested for HIV and how negatively affected he was by this encounter. Complainant #2 dissolved into a life of drug and alcohol addiction. He eventually entered rehab and continues with therapy where he is attempting to deal with the drug and alcohol addiction as well as the impact his encounter with Mr. Boone had had on his life.
[97] In reviewing the case law submitted by the Crown and Defence regarding individuals convicted of aggravated sexual assault where the interaction was brief, a condom not used and the complainant was not infected with HIV, the range of sentences is between 18 months and 4 years. The lower sentences were provided where the offender was not acting in a predatory or malicious manner. The higher range of sentences occurred where the offender was acting maliciously, in a self-indulgent manner and without regard for his partner’s well-being.
[98] In the case of Complainant #2, the convictions include attempted murder as well as aggravated sexual assault and administer a noxious thing. Mr. Boone’s conduct was clearly in the most egregious range of maliciousness and included a deliberate attempt to cause harm to Complainant #2. I conclude therefore that the sentence for the attempted murder conviction would be a period of incarceration of 6 years, consecutive.
[99] I find that the appropriate sentence for aggravated sexual assault is four years concurrent and that the conviction for administering a noxious thing is stayed pursuant to the Kienapple principle.
Sentence re: Complainant #3
[100] Mr. Boone was convicted of aggravated sexual assault with respect to Complainant #3 as a result of one encounter of anal intercourse where Mr. Boone used a condom. Complainant #3 did not contract HIV from Mr. Boone.
[101] Complainant #3 and Mr. Boone met on a dating website and after chatting for some time agreed to meet. Complainant #3 had told Mr. Boone that he was shy and that he was not sure if he would engage in any sexual activity.
[102] When asked, Mr. Boone denied that he had any sexually transmitted diseases or infections. When he agreed to have sexual intercourse with Mr. Boone, Complainant #3 insisted that their sexual interaction be with the use of a condom and Mr. Boone complied with that request.
[103] The conviction for aggravated sexual assault with respect to this complainant stems from the fact that at the time of their sexual liaison, Mr. Boone’s viral loads were very high. The evidence of the expert witnesses was that anal sexual intercourse when the penetrating partner has a high viral load has a realistic possibility of transmission of the virus even when a condom is used. Therefore, the test under Mabior for establishing aggravated sexual assault was satisfied.
[104] As with his other sexual interactions, Mr. Boone lied about his HIV status to Complainant #3 and was callous in his disregard for Complainant #3’s personal safety. However, in this situation the limited sexual interaction coupled with the use of a condom militates towards a sentence in the lower range of sentences for aggravated sexual assault as it pertains to HIV non-disclosure related convictions.
[105] I conclude therefore that the sentence for aggravated sexual assault with respect to Complainant #3 is a period of incarceration of 2.5 years, consecutive.
Sentence re: Complainant #4
[106] The facts regarding this complainant and his interactions with Mr. Boone are rather unusual. Complainant #4 was HIV positive prior to meeting up with Mr. Boone for their sexual liaison. In addition, Complainant #4 was aware that Mr. Boone was also HIV positive and that Mr. Boone was not taking antiretroviral medication. Mr. Boone’s profile on the website where they began chatting (one of the more explicit, “bug-chaser” sites) indicated that he was HIV positive and when asked by Complainant #4, Mr. Boone confirmed his HIV positive status.
[107] Complainant #4 testified that he knew that Mr. Boone was sexually aroused by believing that he could infect other men with HIV. They engaged in various fantasy chats about Complainant #4 desiring to have Mr. Boone infect him with HIV in order to have a part of Mr. Boone’s DNA inside him forever.
[108] Complainant #4 and Mr. Boone engaged in two separate incidents of anal intercourse without a condom on two separate dates in March 2010. Complainant #4 never informed Mr. Boone that he was in fact HIV positive and initially told the police that it was Mr. Boone who infected him, only admitting that he was HIV positive prior to engaging in sex with Mr. Boone when his lie was discovered just before the preliminary inquiry.
[109] The jury convicted Mr. Boone of attempted murder and attempt to administer a noxious thing with respect to Complainant #4. Mr. Boone was not charged with aggravated sexual assault with respect to Complainant #4 because there was no realistic possibility of transmission of HIV as set out in Mabior for someone who was already HIV positive.
[110] There is no question from the evidence of Complainant #4 and the chat room discussions between Complainant #4 and Mr. Boone that Mr. Boone intended to infect Complainant #4 with HIV. Mr. Boone was foiled in this attempt because Complainant #4 lied about his own status.
[111] This fact scenario is significantly different than that of the other complainants, and on these facts, a lesser sentence is warranted notwithstanding the seriousness of the convictions because of the fact that Complainant #4 was already HIV positive and lied to Mr. Boone when he told him that he wanted to become infected. Nonetheless Mr. Boone intended to infect this complainant and thus acted without regard to the consequences to Complainant #4.
[112] The offence of attempted murder does not require a minimum sentence. With respect to Complainant #4, I agree with the sentence proposed by the Defence. I therefore conclude that the sentence for the attempted murder conviction shall be a period of incarceration of 1 year, consecutive. The conviction of attempt to administer a noxious thing with respect to Complainant #4 is stayed pursuant to the Kienapple principle.
Breach of Probation
[113] Neither the Crown nor Defence provided much in the way of submissions regarding this conviction. The offence was conceded when Mr. Boone was convicted of the other charges.
[114] An appropriate sentence for a breach conviction of this nature is modest and I again accept the Defence position that a sentence of 30 days concurrent is the appropriate sentence.
[115] The global sentence prior to consideration of pre-sentence custody amounts to 19 years and 6 months. As already set out, the totality principle requires that I consider whether or not this length of sentence is unduly harsh. In applying this principle, I find that a fit global sentence for all convictions is 14 years.
[116] This sentence shall be reduced by the time Mr. Boone has already spent in pre-sentence custody at a rate of 1.5:1.
[117] I will address the mandatory additional orders at the end of these reasons.
Long-Term Offender Application
[118] The test to designate an offender as a long-term offender is set out in 753.1 of the Criminal Code:
- The Court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that:
(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;
(b) there is a substantial risk that the offender will reoffend; and
(c) there is a reasonable possibility of eventual control of the risk in the community.
- The Court shall be satisfied that there is a substantial risk that the offender will reoffend if:
(a) the offender has been convicted of an offence under ... section 273 (aggravated sexual assault)…, or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and
(b) the offender
(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or
(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
Psychiatric Assessment by Dr. Ahmed
[119] Dr. A.G. Ahmed conducted a psychiatric assessment of Mr. Boone that involved four interviews with Mr. Boone and included standardized testing. At the conclusion of his assessment, it was Dr. Ahmed’s opinion that Mr. Boone presented with features of a Personality Disorder, Not Otherwise Specified. He described this as a diagnostic category used to describe clinically significant pervasive personality disorder categories. In Mr. Boone’s case the personality disorder included a cluster of histrionic, avoidant, paranoid and schizoid personality traits.
[120] Dr. Ahmed also found that Mr. Boone presented with Substance Abuse Disorder, specifically Alcohol Use Disorder. Because of the controlled environment in the correctional institution, Dr. Ahmed determined that Mr. Boone was in full remission from Disorder due to the controlled environment where alcohol is not available.
[121] Mr. Boone had reported symptoms of anxiety and depression to Dr. Ahmed, who determined that Mr. Boone was suffering from situational Adjustment Disorder with Mixed Anxiety and Depressed Mood, also due to the circumstances of being incarcerated but that his symptoms did not meet the criteria for a Major Depressive Disorder.
[122] It was Dr. Ahmed’s opinion that Mr. Boone does not suffer from a major mental disorder such as schizophrenia or bipolar disorder.
[123] In assessing Mr. Boone’s risk to reoffend, Dr. Ahmed made the following statements in his report and confirmed them in his evidence in the sentencing hearing:
a) It is quite clear that there is a pattern of disregard for Mr. Boone’s sexual partners by exposing them to HIV virus through unprotected sex. It is my opinion that his behaviour was extremely dangerous and reckless with little consideration for the serious physical consequence or severe psychological impact on the victims of his indiscretion.
b) Mr. Boone’s past history and current behaviour suggests a significant inability in thinking of the consequences of his behaviour on others.
c) Mr. Boone’s craving for attention, as reflected by his histrionic personality traits, remains a significant risk factor for Mr. Boone that will require close monitoring in a structured environment.
d) Mr. Boone, because of his impulsivity and the persistent need to be cared for, is at least at a moderate risk of engaging in similar behaviour as in the predicate offences.
[124] Dr. Ahmed concluded that Mr. Boone was a substantial risk to reoffend. He clarified that the term “moderate risk” means a “strong risk or a risk that is relatively large enough to warrant intervention to prevent almost certain reoccurrence of the risk behaviour in the future.” In reaching that conclusion, Dr. Ahmed noted Mr. Boone’s HIV positive status, his maladaptive personality traits, the large victim pool even in the correctional setting, a history of poor motivation to receive treatment and a substance abuse disorder.
[125] Dr. Ahmed stated that Mr. Boone would benefit from treatment focusing on his maladaptive personality traits and substance abuse. He noted that Mr. Boone had not received treatment for these issues and that Mr. Boone continues to underestimate the severity of both problems as well as the impact of his reckless and impulsive sexual practice on his partners.
[126] Dr. Ahmed was of the opinion that the risk posed by Mr. Boone could be ameliorated depending on his response to treatment. Dr. Ahmed pointed out however, that Mr. Boone had a number of risk factors that included concern about his compliance with taking the antiretroviral medications when not supervised, his maladaptive personality structure, lifestyle of alcohol abuse, accessibility to victims and minimization of the impact of his behaviour on others. Dr. Ahmed confirmed that because of these factors, Mr. Boone would require close monitoring in order to reduce the risk posed by him to the public.
Position of the Defence
[127] The Defence agreed that Mr. Boone meets the statutory criteria for consideration as a long-term offender under sections 753.1(1)(a) and 753.1(2)(a) of the Criminal Code. He has been convicted of aggravated sexual assault and has been sentenced to more than two years’ incarceration.
[128] Counsel for the Defence argued that the Crown had not satisfied the Court that Mr. Boone is a serious risk to reoffend under the second part of the test in section 753.1(1)(b) because there was insufficient evidence to demonstrate that Mr. Boone meets the criteria in section 753.1(2)(b) that he:
a) has shown a pattern of repetitive behaviour, of which the offence for which he has been convicted forms a part, that shows a likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons, or
b) by conduct in any sexual matter, including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
[129] It was the position of the Defence that to conclude there is a likelihood that Mr. Boone will cause injury to another person, the only consideration is whether he will reoffend in the future.
[130] The Defence argued that the Crown has not satisfied the Court that Mr. Boone will reoffend in the future. In support of this position, counsel for the Defence pointed to the fact that Mr. Boone has been compliant with taking his antiretroviral medication while incarcerated and that his current viral load scores are undetectable.
[131] Counsel also noted that even though Mr. Boone engaged in a sexual relationship without using a condom while incarcerated, he disclosed his HIV positive status to his sexual partner and obtained written consent prior to engaging in that relationship. He also noted that while incarcerated, Mr. Boone has not consumed alcohol.
[132] Mr. Boone has also completed a number of courses through the New Life Ministry with an average grade of 95.2%.
[133] Defence counsel also referred to the fact that Mr. Boone has sought some psychological counselling for depression and anxiety while incarcerated and has reached out and received support from a number of individuals, including those in the HIV community who assist persons as they learn to deal with their HIV positive status. A number of letters of support were submitted to the Court during the sentencing hearing.
Position of the Crown
[134] It was the Crown’s position that Mr. Boone meets all of the criteria to satisfy the Court that he should be designated a long-term offender.
[135] The Crown submitted that they may demonstrate that Mr. Boone poses a substantial likelihood of reoffending in various ways. She noted that the Criminal Code requires that the Court shall be satisfied of the substantial risk to reoffend if the offender has been convicted of a designated offence (including aggravated sexual assault under section 273); and he has shown a pattern of repetitive behaviour that shows a likelihood of causing injury to or inflicting severe psychological damage on other persons, or by conduct in any sexual matter, he has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.
[136] Crown counsel noted that in reaching a decision that there is a substantial likelihood of reoffending or of causing injury to or inflicting severe psychological damage on others, the Court must make the decision based upon the present risk as it is informed by past behaviour and conduct. She referenced R. v. Johnson, [2008] O.J. No. 4209 (S.C.), where the Court at paragraph 78 stated:
Section 753.1(1)(c) does not contemplate a judge considering whether there will be a reasonable possibility of eventual control in the community of the risk of the offender re-offending at some hypothetical point in time in the future after the offender is released on parole. Such a task would be impossible. It would require the judge to speculate about when the offender will be released on parole, what sort of treatment the offender will be offered while imprisoned, whether or not the offender will undertake it, whether or not the offender will complete it, and whether or not the treatment will be successful.
Analysis and Conclusion
[137] In considering whether there is a substantial likelihood that Mr. Boone will reoffend or cause injury to or inflict severe psychological damage on others after his release from prison, I accept the position of Crown counsel. I find that it is the conduct of Mr. Boone prior to his conviction as well as the evidence of the assessor, Dr. Ahmed, who found Mr. Boone to be a substantial risk to reoffend, that is most compelling in determining his future conduct.
[138] I am not persuaded that Mr. Boone’s conduct during his incarceration is sufficient to demonstrate that he is not a substantial risk for reoffending upon his release. The evidence about Mr. Boone’s incarceration is that he has been kept in a form of solitary confinement and is handed his medication every day, making compliance with taking his medication easy for him.
[139] Mr. Boone has not accepted responsibility for the conduct that has resulted in his incarceration. The evidence from the correctional facility was that he desires to have intimate relationships with other inmates. This conduct, even with the consent of the other inmates and with his viral load at a low or undetectable measure, does not reassure me that his risk to reoffend is not substantial.
[140] Similarly, I am not convinced that being compliant with his antiretroviral medication and abstaining from alcohol while incarcerated is a good predictor of what his conduct will be when released.
[141] For those reasons, I am satisfied beyond a reasonable doubt that Mr. Boone does pose a serious risk to reoffend based upon the pattern of behaviour he demonstrated in committing these offences. This is supported by Dr. Ahmed’s opinion that until Mr. Boone seeks treatment for and develops an understanding of his personality disorders, particularly his inability to consider the consequences of his actions, he will continue to pose a serious risk to reoffend. I therefore find that these factors are sufficient to establish beyond a reasonable doubt that there is a substantial risk that Mr. Boone will reoffend.
[142] I therefore find Mr. Boone to be a long-term offender and impose a five year supervision order. In addition to the substantial risk that Mr. Boone will reoffend if not the subject of a long-term supervision order, I find that with such an order, there is a reasonable possibility of eventual control of that risk in the community.
[143] A period of community supervision after he has served his sentence would benefit Mr. Boone in order to provide him with the opportunity to address the issues that resulted in his convictions as well as the maladaptive personality traits that were described by Dr. Ahmed. The period of supervision would also serve to ensure that Mr. Boone is compliant with taking his antiretroviral medication and continues to abstain from the use of alcohol.
Summary of Sentence
[144] In summary, the sentence imposed on Mr. Boone is as follows:
a) Complainant #1 (D.S.):
Attempted Murder - 10 years
Aggravated Sexual Assault - 8 years (Concurrent)
Administer a Noxious Thing - Stayed
b) Complainant #2 (M.C.):
Attempted Murder - 6 years (Consecutive)
Aggravated Sexual Assault - 4 years (Concurrent)
Administer a Noxious Thing - Stayed
c) Complainant #3 (B.C.):
Aggravated Sexual Assault - 2.5 years (Consecutive)
d) Complainant #4 (M.B.):
Attempted Murder - 1 year (Consecutive)
Attempt to Administer a Noxious Thing - Stayed
e) Breach of Probation: 30 days (Concurrent)
[145] Pursuant to the totality principle, I have reduced the total sentence for all convictions to 14 years. Crown and Defence have agreed that Mr. Boone is entitled to credit for time served on the basis of 1.5:1 that they have calculated to be 1,710 days. I have determined that 1,710 days equals 57 months credit for time served. The balance of Mr. Boone’s sentence therefore is 9 years, 3 months from today, March 9, 2016.
The Long-Term Supervision Order
[146] After serving his sentence, Mr. Boone will be subject to a long-term supervision order for a period of 5 years.
[147] I acknowledge that it is the National Parole Board (“the Board”) that is tasked with setting the terms of the order, because, in the instance of a long-term supervision order, the commencement of the conditional release is some years after sentencing, the Board enjoys the advantage of setting conditions in an environment informed by current information about the offender’s mental health and rehabilitative progress, the medical science of the day and the community-based resources in existence.
[148] Notwithstanding the role of the Board in setting the terms of the order, the sentencing judge may make recommendations. In the case of an offender such as Mr. Boone with an alcohol abuse disorder, it is essential that he receive not only the relevant counselling and treatment but also that a meaningful monitoring programme be instituted by way of random urinalysis or blood testing to police abstinence.
[149] I strongly recommended that the Board consider implementation of the following additional conditions in the long-term supervision order:
a) That Mr. Boone be required to continue treatment for his HIV and take his antiretroviral medication as prescribed by his medical professionals;
b) That Mr. Boone abstain from the consumption of alcohol and not have alcoholic beverages in his possession or under his control, and that he not attend at any bar or facility for which the major purpose is the serving of alcohol;
c) That Mr. Boone not possess or have under his control any substance described in the Controlled Drugs and Substances Act except under the authority of a medical prescription;
d) That Mr. Boone be subject to random alcohol and drug testing on a schedule to be determined by the Board and that he co-operate fully with the long-term supervision order supervisor or designate in this regard, including response within a designated notice period to a testing centre;
e) That Mr. Boone make reasonable efforts to seek and maintain gainful employment or to attend educational or training development courses; and
f) That Mr. Boone receive treatment and counselling for to address his personality disorders and for substance abuse or other therapeutic programs as may be identified by the Board or parole supervisor and that he co-operate fully in producing proof of attendance and progress as required.
Other Mandatory Orders
[150] Mr. Boone is sentenced to life-time weapons prohibition order pursuant to section 109 of the Criminal Code.
[151] The Court orders the taking from Mr. Boone, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code.
[152] In accordance with section 760 of the Criminal Code, a copy of all reports and testimony given by psychiatrists, psychologists, criminologists and other experts and any observations of the Court with respect to the reasons for the findings, be forwarded to the Correctional Service of Canada as soon as practicable.
[153] This Court orders that Mr. Boone be registered on the National Sex Offender Registry for life.
Madam Justice B. R. Warkentin
Released: March 9, 2016
CITATION: R. v. Boone, 2016 ONSC 1626
COURT FILE NO.: CR-10-SA5086
DATE: 2016/03/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
STEVEN PAUL BOONE
Accused
REASONS ON SENTENCE
Warkentin J.
Released: March 9, 2016