Court File and Parties

CITATION: R. v. Goodchild, 2017 ONSC 6739 COURT FILE NO.: 7638/16 DATE: 2017-11-15

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

— and —

Nicholas Goodchild, Accused

Counsel: Dana Peterson, for the Crown Jennifer Tremblay-Hall, for the Accused

HEARD: June 20, 21, 22, 23 and July 11, 12, 14, 2017

BEFORE: Gareau J.

REASONS FOR JUDGMENT

THE CHARGES

[1] The accused is charged under a five-count indictment dated March 1, 2016. Count 1 in the indictment was severed to be tried separately by order granted on May 30, 2017. Count 5 in the indictment was withdrawn at the request of the Crown on May 29, 2017. This matter proceeded to trial on Counts 2, 3 and 4 of the indictment.

[2] Count 2 provides that Nicholas Goodchild stands charged that he on or between July 1, 2013 and April 30, 2014, at the City of Sault Ste. Marie did in committing a sexual assault on A.C. endanger the life of AC., thereby committing an aggravated sexual assault, contrary to s.273(2)(b) of the Criminal Code of Canada.

[3] Count 3 provides that Nicholas Goodchild stands charged that he on or about September 1, 2013, at the City of Sault Ste. Marie, did in committing a sexual assault on A.G. did endanger the life of A.G., thereby committing an aggravated sexual assault, contrary to s.273(2)(b) of the Criminal Code of Canada.

[4] Count 4 provides that Nicholas Goodchild stands charged that he on or between December 1, 2013 and January 3, 2014, at the City of Sault Ste. Marie did in committing a sexual assault on N.W. did endanger the life of N.W., thereby committing an aggravated sexual assault, contrary to s.273(2)(b) of the Criminal Code of Canada.

[5] The accused has entered pleas of not guilty to the three aforementioned charges and the matter proceeded to trial. The court heard evidence in this matter on June 20, 21, 22, 23 and July 11 and 12, 2017. Submissions from counsel were received on July 14, 2017. The matter was put over to November 15, 2017 for decision.

FACTUAL BACKGROUND

[6] Filed as Exhibit 1 is an agreed statement of fact which reads as follows:

October 10, 2013, Mr Goodchild attended Sault Area Hospital with possible pneumonia.

Blood work was ordered by Dr. Paul Wild, including an HIV screen.

October 18, 2013, the Public Health Laboratory reported that HIV 1 Western Blot tested positive. The HIV Final Interpretation was HIV 1 antibodies detected.

October 20, 2013, Mr Goodchild returned to the Sault Area Hospital as arranged to be informed of his test results.

Dr. Beduhn was working in the Emergency Department and he informed Mr Goodchild of his HIV-positive test result.

Dr. Beduhn made a referral to Haven Clinic at Health Sciences North in Sudbury.

[7] An undisputed fact in this case is that the accused had knowledge of his HIV status as of October 20, 2013. HIV, is human immunodeficiency virus, which is the virus that causes acquired immune deficiency syndrome (AIDS), which is a disease that destroys the body’s ability to fight off infection.

[8] As early as January 14, 2010, Mr. Goodchild was contacted by the Algoma Public Health Unit (“APHU”) in Sault Ste. Marie, Ontario and advised that he was named as a contact in a non-confirmed case of HIV. It was the evidence of Karen Hooey, a registered nurse at APHU that she advised Mr. Goodchild that he should get tested for HIV, that he should disclose to any sexual partners his HIV status, and that he should use a condom for all acts of oral sex and vaginal and anal intercourse.

[9] After his diagnosis of HIV-positive on October 20, 2013, Mr. Goodchild met with Carolyn Kargiannakis of the APHU on October 25, 2013. The purpose of that meeting was to provide Mr. Goodchild with education with respect to the transmission of the HIV virus. According to the evidence of Ms. Kargiannakis, Mr. Goodchild was advised of the importance of not putting anyone at risk of the disease and advised to either abstain from sexual relations or to use a condom during all acts of sexual relations. According to the evidence of Ms. Kargiannakis, Mr. Goodchild was told of the importance of disclosing to all sexual partners his HIV status and that Mr. Goodchild indicated he understood this. Mr. Goodchild was referred to the Haven facility in Sudbury, Ontario for treatment.

[10] After his attendance at the APHU on October 25, 2013, Mr. Goodchild had numerous lab tests to ascertain his viral load. The results of these lab tests are as follows:

October 30, 2013 – viral load: 11,345 CD4: 197

November 5, 2013 – viral load: 27,868 CD4: 248

March 12, 2014 - viral load: 19,928 CD4: 193

June 24, 2014 - viral load: 158 CD4: 325

October 29, 2014 - viral load: not detected CD4: 354

[11] Mr. Goodchild started treatment for HIV by taking antiretroviral therapy and antiretroviral medication on April 3, 2014. The medication taken by Mr. Goodchild was Complera.

[12] Mr. Goodchild was introduced to the complainants A.C. and A.G. through a dating website called “Plenty of Fish”. Mr. Goodchild was introduced to the complainant N.W. through his brother, Justin. Neither the complainants nor Mr. Goodchild intended or desired their relationship to be long-term or what can be described as a “boyfriend/girlfriend” dating relationship. The sole purpose of the encounters between the three complainants and Mr. Goodchild was to have sexual relations.

[13] It was the evidence of A.C. that she had sexual relations with the accused from the end of July 2013 to March 2014. It was the evidence of A.C. that the sexual acts with Mr. Goodchild involved oral sex without the use of a condom and vaginal intercourse with the use of a condom.

[14] It was the evidence of N.W. that she had sexual relations with the accused between December 2013 and January 2014. It was the evidence of N.W. that the sexual acts with Mr. Goodchild involved oral sex without the use of a condom and vaginal intercourse without the use of a condom.

[15] It was the evidence of A.G. that she had sexual relations with the accused from September 2013 until after Thanksgiving in 2014. It was the evidence of A.G. that she and Mr. Goodchild had vaginal sexual intercourse on 10 to 12 occasions and that on 75 to 80% of those times that they had oral sex as well. It was the evidence of A.G. that during the acts of vaginal sexual intercourse with Mr. Goodchild, a condom was used and that during the acts of oral sex, a condom was not used.

THE LAW AND THE ISSUES IN THIS CASE

[16] The accused is charged with aggravated sexual assault, contrary to s.273(2)(b) of the Criminal Code of Canada. Section 273(1) of the Criminal Code provides that:

Everyone commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant. [Emphasis added.]

Section 273(2)(b) of the Criminal Code provides that every person who commits an aggravated sexual assault is guilty of an indictable offence and liable to imprisonment for life.

[17] The leading case on the issue of whether an HIV-positive person who engages in sexual relations without disclosing his condition commits aggravated sexual assault is the Supreme Court of Canada decision in R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584. The principle enunciated by the Supreme Court is summarized at para. 4 of the decision which reads as follows:

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

[18] In Mabior, the court considered the previous tests set out in R. v. Cuerrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371. As stated by the court in Mabior at para. 57:

The Cuerrier test, to recap, requires proof of two elements: (1) a dishonest act; and (2) deprivation. It defines the first element broadly in terms of either misrepresentation or non-disclosure of HIV, and the second element equally broadly in terms of whether the act poses “a significant risk of serious bodily harm”.

[19] In Mabior, the court would not accept the Crown’s position that in cases involving HIV there should be a requirement to disclose that fact to all sexual partners in all cases thereby removing the requirement that there be “a significant risk of serious bodily harm” to attract criminal culpability. The court concluded in Mabior that the “significant risk of serious bodily harm” requirement remained a necessary element for the offence of aggravated sexual assault but the test required clarification. As noted by the Supreme Court of Canada at para. 68 of its decision, “[a] significant risk of serious bodily harm must be established by medical evidence in each case. The question is whether at the time of the sexual act in question, the particular act posed a significant risk of transmitting HIV. This typically requires the Crown to call expert evidence as to the accused’s viral count at the time of the offence as well as risks associated with any condom protection used.”

[20] In Mabior, the court did not accept the argument that condom use alone always negates a significant risk of serious bodily harm. As to what constitutes a “significant risk of serious bodily harm”, the Supreme Court of Canada concluded that where there is a realistic possibility of transmission of HIV, a significant risk of serious bodily harm is established. As noted in para. 84 of the court’s decision, “a ‘significant risk of serious bodily harm’ connotes a position between the extremes of no risk (the trial judge’s test) and high risk (the Court of Appeal’s test)”.

[21] As the court stated at para. 87 of its decision, “a standard of realistic possibility of transmission of HIV avoids setting the bar for criminal conviction too high or too low.” The court went on to state at para. 88, “[a] realistic possibility of transmission arguably strikes the right balance for a disease with the life-altering consequences of HIV.”

[22] There must be a realistic possibility of transmission of the HIV virus for there to be a “significant risk of serious bodily harm”. When is there a realistic possibility of transmission of HIV? At para. 94 of Mabior, the Supreme Court of Canada answers that question this way:

The evidence adduced here satisfies me that, as a general matter, a realistic possibility of transmission of HIV is negated if (i) the accused’s viral load at the time of sexual relations was low; and (ii) condom protection was used.

[23] In other words, if it is established that both criteria are met, namely a low viral load and condom use the essential ingredient that there be a “significant risk of serious bodily harm” would not be established. According to the Supreme Court of Canada in Mabior, the combined effect of a low viral load and condom use are necessary to negate a realistic possibility of the transmission of HIV. The Supreme Court of Canada is very clear on this in the case of Mabior.

[24] The case before me centres around the issue of the “significant risk of bodily harm” element of s.273(1) of the Criminal Code of Canada and whether there was a realistic possibility of the transmission of the HIV virus in the case of Nicholas Goodchild.

[25] The position of the defence is that since the Supreme Court of Canada decided in Mabior in 2012, advancements in science as it pertains to the HIV virus and condom use are such that a realistic likelihood of the transmission of the HIV virus is negated by either condom use or a low viral load. In other words, the position of the defence is that in 2017 if a person with the HIV virus uses a condom during sexual intercourse this alone should be sufficient to establish that there is not a realistic likelihood of the transmission of the HIV virus and therefore negate a significant risk of bodily harm. This position is at odds with the current state of the law in Mabior, as the Supreme Court of Canada made it clear in that decision that condom use alone does not negate a significant risk of bodily harm (paras. 69 and 70).

[26] If this court accepts the position of the defence that condom use alone is sufficient, then the accused would be acquitted with respect to counts 2 and 3 of the indictment because the evidence of the complainants A.C. and A.G. was clear that condom protection was used by Nicholas Goodchild during his acts of vaginal sexual intercourse with them. With respect to count 4, the outcome would depend on the findings of fact this court made with respect to the evidence given by N.W., particularly with respect to condom use during her sexual encounters with Mr. Goodchild.

[27] On the other hand, if this court applies the test in Mabior, that both a low viral count and condom use are required to establish that there is no realistic possibility of transmission of the HIV virus and therefore no significant risk of bodily harm, then there would be a conviction on counts 2, 3 and 4 because Nicholas Goodchild did not start his antiretroviral medication and treatment until April 3, 2014, and his lab testing establishes that he did not have what would be considered to be a low viral load count until June 2014, which is after his relationships with A.C. and N.W. and during the later stages of his relationship with A.G.

THE EVIDENCE OF THE COMPLAINANTS

The Evidence of A.G.

[28] The complainant A.G. was married with two children during the time she had sexual relations with Nicholas Goodchild. She met Mr. Goodchild on-line, on the “Plenty of Fish” website. The sole purpose of A.G. seeking out Mr. Goodchild was to have an adventurous sexual relationship outside of her marriage. Mr. Goodchild was fine with this arrangement. There was no social relationship or friendship that developed between the complainant A.G. and Mr. Goodchild. Each time they met it was for the sole, explicit purpose of having sexual relations.

[29] The evidence of A.G. is that she first met Nicholas Goodchild in September 2013 and continued to see him for sex until after the Thanksgiving weekend in 2014. A.G. estimated that during this period of time they had vaginal sexual intercourse approximately 10 to 12 times. Their sexual encounters would be in public places, such as Hiawatha Park, Wishart Park, behind the Sir James Dunn Secondary School and in her car. Not surprisingly, A.C. and Mr. Goodchild did not see each other during the colder, winter months. A.G. testified that there was one sexual encounter at her home, in December 2013.

[30] It was the evidence of A.G. that each time she had vaginal sexual intercourse with Nicholas Goodchild a condom was used. There were also acts of oral sex, which A.G. estimated occurred 75 to 80% of the times she and Nicholas Goodchild got together. A condom was not used when A.G. performed fellatio on Mr. Goodchild. During acts of oral sex, Mr. Goodchild would ejaculate. A.G. does not recall where that was on all instances, but did give evidence that sometimes Mr. Goodchild would ejaculate in her mouth and that she would swallow the ejaculate.

[31] A.G. testified that Nicholas Goodchild never told her that he was HIV-positive and that there was no discussion about sexually transmitted diseases before they had sexual relations. A.G. was clear in her evidence that if Nicholas Goodchild had told her that he was HIV-positive she would not have continued to have sex with him. As A.G. put it, this would have been high risk to her because she was still married. As she stated, “I would not want to bring this home to my relationship”.

[32] A.G. indicated in her evidence that she read about the HIV status of Nicholas Goodchild in a notice posted on the SooToday website. This notice was posted on that website on Friday, October 31, 2014 and was entered as Exhibit 4. That notice has a picture of Nicholas Goodchild and states, in part, the following:

It is alleged that between July 2013 and October 2014 the accused had unprotected sex with two adult females and failed to disclose to either victim that he was HIV-positive. On Friday, October 24, 2014, investigators charged 25-year-old Nicholas Goodchild of Sault Ste. Marie with two counts of aggravated sexual assault.

The notice invites anyone who had sexual relations to seek medical attention.

[33] A.G. described as being “in shock” when she read the notice on SooToday. As she put it, “I think I died a little bit inside”. She testified that her sister took her to the police station and to the hospital. In a text message entered as Exhibit 6, A.G. contacted Nicholas Goodchild and indicated, “I would have preferred a choice”, meaning that she would have preferred to know about Mr. Goodchild’s HIV status so she could have made a choice for herself. A.G. testified that if she had a choice it would have been to say no to sexual relations with Nicholas Goodchild. As she put it, “I would have said no. I had no emotional attachment to him.”

[34] A.G. was tested for the HIV virus and tested negative.

[35] In cross-examination, it was suggested to her that she was looking for risk, that she was on the Plenty of Fish website and was into high risk, adventurous behaviour and made no inquiries into whether he had any sexually transmitted diseases. If I am to conclude from this that A.G. would have consented to sexual relations with Nicholas Goodchild had she known that he was HIV-positive on the totality of the evidence, I cannot reach that conclusion. I found A.G. to be a truthful, credible witness and I accept her evidence that had she known Nicholas Goodchild was HIV-positive, she would not have consented to sexual relations with him or continued a sexual relationship with him. As the jurisprudence indicates, the onus is not on the complainant to make inquiries about her sexual partner’s HIV status, but rather the onus lies on the person with the HIV to disclose.

The Evidence of A.C.

[36] The complainant A.C. was the unmarried mother of two children at the time of her relationship with Nicholas Goodchild. It was the evidence of A.C. that she met Mr. Goodchild on the “Plenty of Fish” website. It was her evidence that her sexual relationship with Mr. Goodchild began at the end of July 2013 and continued to March 2014.

[37] A.C. testified that there were no sexual relations during her first two meetings with Mr. Goodchild but rather walks at the Fort Creek Conservation area and Wishart Park. On the third encounter, A.C. and Nicholas Goodchild had sexual intercourse in the bush on the ground at Wishart Park. More often than not, Mr. Goodchild would come over to A.C.’s home and they would have sexual intercourse there and Mr. Goodchild would leave. As A.C. put it, the whole point of her getting together was to have sex with Nicholas Goodchild. It was obvious that there was not much more to their relationship than just sex.

[38] It was the evidence of A.C. that each sexual encounter with Nicholas Goodchild involved vaginal sexual intercourse and on each occasion, a condom was used, usually provided by Mr. Goodchild. A.C. also testified that on every other occasion she got together with Mr. Goodchild, they had oral sex, which she described as “mutual”. Sometimes, Mr. Goodchild would ejaculate and sometimes he would not. When Mr. Goodchild did ejaculate during oral sex, sometimes he would ejaculate in the mouth of A.C. and she would spit it out.

[39] A.C. testified that the last time she was sexually active with Nicholas Goodchild was at the beginning of March 2014 and that they did not get together again after that point in time.

[40] A.C. disclosed her health history to Nicholas Goodchild. She disclosed to Mr. Goodchild that she had cancer in the nature of leukemia and that she had chemotherapy and a stem cell transplant. It was the evidence of A.C. that despite sharing her health history with him, Nicholas Goodchild never shared his health history with A.C. As A.C. put it, “I didn’t know that he had any health issues at all.” A.C. did not ask Mr. Goodchild if he had any sexually transmitted disease, indicating “I didn’t think I would have to ask, oddly enough.”

[41] A.C. had no idea that Nicholas Goodchild had tested positively for the HIV virus. It was her evidence, most emphatically, that had she known “I would not have had a sexual relationship. I would have had to walk away.” As A.C. indicated, given her health history, she would not have wanted to take the risk. This is entirely reasonable and sensible given the fact that A.C. had cancer in the past which involved a blood disease, which would have caused her immune system to be in a compromised state.

[42] A.C. testified that she had blood tests and DNA testing on an annual basis due to her past health difficulties. At the time of her relationship with Nicholas Goodchild, A.C. tested negatively for HIV. In October 2014, A.C. tested positively for HIV. As a result of this positive test, A.C. takes antiretroviral medication on a daily basis. A.C. testified that she had an early diagnosis of HIV enabling effective treatment. At the time she gave her evidence, A.C. indicated that her viral count was zero.

[43] In cross-examination, inconsistencies in previous statements and previous testimony given by A.C. were highlighted for the court. For example, in her statement to the police given on October 23, 2013, A.C. indicated that she had oral sex every time she was with Mr. Goodchild. At trial, she said it was every other time. At the preliminary hearing, A.C. testified that Mr. Goodchild did not ejaculate when she performed oral sex on him, and that there was no exchange of fluids. At trial, A.C. testified that there were times Mr. Goodchild ejaculated in her mouth and she spit it out. At the trial, A.C. testified during cross-examination that “it is entirely possible that there was no ejaculate in her mouth.” At the preliminary hearing, A.C. testified that she would “probably not” have had sexual relations with Mr. Goodchild had she known he had the HIV virus. At trial, A.C. testified that she “absolutely would not have had sexual relations with Goodchild if she had known he was HIV-positive.”

[44] In my view, the inconsistencies highlighted in cross-examination do not diminish the overall quality of the evidence given by A.C. at trial. Whether or not Mr. Goodchild ejaculated in the mouth of A.C. or how many times she had oral sex with him is inconsequential to the issue to be decided in this case. I accept as entirely reasonable and plausible the position taken by A.C. that she would have not engaged in sexual relations with Nicholas Goodchild had she been told of his HIV status. Given the health history of A.C., it would not make any sense for her to do otherwise.

The Evidence of N.W.

[45] N.W. testified that she met Nicholas Goodchild, through his brother, Justin, around November 2013. She testified that her sexual relationship with Mr. Goodchild was in December 2013 and January 2014 and after Christmas in 2013 was the last time she had sexual intercourse with Nicholas Goodchild. N.W. testified that she and Mr. Goodchild “got together a few times”. She indicated that theirs was “not a romantic relationship”.

[46] In her evidence, N.W. described acts of vaginal sexual intercourse and “mutual oral sex” which she had with Nicholas Goodchild. N.W. described the acts of oral sex whereby her mouth was on Mr. Goodchild’s penis. No condom was used. Mr. Goodchild did not ejaculate during the acts of oral sex performed on him by N.W. As to the acts of vaginal sexual intercourse, it was the evidence of N.W. that no condom was used by Nicholas Goodchild. N.W. testified that she recalled one instance where she was on top of Mr. Goodchild and when he reached climax he ejaculated on her back.

[47] It was the evidence of N.W. that Nicholas Goodchild did not disclose to her that he was HIV-positive. She indicated in her testimony that had she known Nicholas Goodchild was HIV-positive and that had that been disclosed to her, she would not have had sexual relations with Mr. Goodchild. As N.W. put it in her evidence, “I would have not knowingly risked something like that. If there was a chance of catching something he had I would not have done it.” N.W. testified that she would not have performed oral sex on Nicholas Goodchild had she known about his medical condition.

[48] N.W. discovered that Nicholas Goodchild was HIV-positive by reading the SooToday article posted or October 31, 2014 (Exhibit 4). It was the evidence of N.W. that she took a test for HIV two days after that date and that she tested negatively.

[49] In cross-examination, N.W. admitted that she has difficulty remembering exact dates. As she put it, “I am not positive about dates”. It is clear that as to specific events that N.W. also has some difficulty with her recollection. In an interview with the Sault Ste. Marie Police Services on December 31, 2014, N.W. stated that her last communication with Nicholas Goodchild was in December 2014, but a Facebook entry, entered as Exhibit 5, indicates that N.W. had communications with Mr. Goodchild into January 2015. In her December 31, 2014 statement to the police she indicated there was only one occasion of oral sex before sexual intercourse. At the preliminary hearing held on January 26, 2016, N.W. testified that there were two occasions of oral sex before sexual intercourse, which was the evidence that N.W. gave at trial. In her statement to the police, N.W. indicated that there was only one event of vaginal sexual intercourse in January 2014. Her evidence at the trial contradicted that.

[50] As to these inconsistencies, N.W. admitted that “there are certain things I don’t remember”. When pressed in cross-examination, N.W. admitted that she was unsure whether there was one or two incidents of oral sex before vaginal intercourse.

[51] Although N.W. was adamant in her evidence at trial that Nicholas Goodchild did not use a condom during vaginal sexual intercourse, it was suggested to her in cross-examination that he did. At one point in her evidence, N.W. testified that “my memory is not clear about the sexual encounters between me and Nick Goodchild in January 2014”. That lack of clarity causes the court some concern with respect to whether a condom was used by Nicholas Goodchild. Not using a condom during vaginal sexual intercourse was not part of Mr. Goodchild’s modus operandi. He clearly used a condom during sexual intercourse in his encounters with complainants A.G. and A.C. On the totality of the evidence, if anything can be said about Nicholas Goodchild it is that he is a creature of habit. Considering all of the evidence, the inconsistencies in the previous statements made by N.W. and her stark admission that her memory is lacking with respect to dates and details, for the purpose of deciding the legal issues in this case, I find as a fact that Nicholas Goodchild used a condom when he had vaginal sexual intercourse with the complainant N.W.

[52] I have no concerns about accepting the evidence of N.W. that she would not have consented to sexual relations with Nicholas Goodchild had she known he was HIV-positive, but I have concerns about accepting her evidence that a condom was not used during acts of sexual intercourse and I do not accept that evidence.

Expert Evidence of Dr. Wendy Lee Wobeser

[53] After a voir dire, Dr. Wendy Lee Wobeser was qualified as an expert to provide opinion evidence to the court. Dr. Wobeser’s curriculum vitae was entered as Exhibit 7. Dr. Wobeser is an infectious disease specialist. Her qualifications and experience as indicated by her curriculum vitae are impressive. Dr. Wobeser was an infectious diseases and internal medicine clinical consultant at the Kingston General Hospital, Hotel Dieu Hospital and Providence Care Centre, all in Kingston, Ontario from 1997 to 2017. From 2016 onward, Dr. Wobeser has been an HIV contract physician for Correctional Services Canada. Currently, Dr. Wobeser is an Associate Adjunct Professor, Department of Medicine at Queen’s University in Kingston, Ontario.

[54] Dr. Wendy Wobeser was qualified by this court to give opinion evidence as an expert in the following areas:

(a) The biology of and treatment of HIV; (b) The risk of transmission of HIV; (c) The general area of infectious diseases.

[55] With respect to the proceeding before the court, Dr. Wobeser prepared a report dated July 10, 2017, which was entered as Exhibit 8. Further reference to this report will be made later in these reasons.

[56] Dr. Wobeser testified that HIV is a virus, named human immunodeficiency virus. As to the connection between AIDS, or acquired immune deficiency syndrome, Dr. Wobeser testified that “infection with HIV is a necessary precursor to AIDS, however, many people who have HIV infection will not develop AIDS and certainly in the current era, one would expect very few persons living with HIV infection to develop AIDS.”

[57] When asked to explain the concept of a viral load, Dr. Wobeser gave the following explanation:

So, when you have the HIV infection, most people have circulating – what we call circulating virus and that can now be quantified using molecular technologies. So, fairly specific estimates can be made of the amount of circulating virus, specifically viral RNA is what is quantified. And if I may give you an illustration of how these two different measures, both of which are used for the management of someone living with HIV – the CD4 count has been likened to the distance one has to travel before one potentially would get into some degree of trouble such as what we would call and AIDS-defining illness. So, it’s how far – how far you are away from that potential, some people call it eclipse and the viral load is how fast you are. So, the higher the viral load, the more likely you are to progress more quickly.

[58] According to the evidence of Dr. Wobeser, as to the level of infectiousness, HIV is the least easily transmissible disease within the bloodborne pathogen group. As stated by the witness, Hepatitis B is “by far the most easily transmissible followed by Hepatitis C and HIV.”

[59] The viral load that Nicholas Goodchild had on October 30, 2013 being 11,345 with a viral log load of 4, was described by Dr. Wobeser as being not high or low but in the mid-range. As Dr. Wobeser testified, “[i]t’s kind of low/medium range of viral load that you might see in somebody who’s being first diagnosed with HIV.”

[60] Anal intercourse was described by Dr. Wobeser to be the highest risk with respect to HIV transmission. As Dr. Wobeser explained in her evidence, “The presumed biology behind that is a combination of a possibility of tears in the rectum, perianal rectum area.”

[61] In her examination in-chief, Dr. Wobeser was asked about condom use. Her evidence was that when there is no opportunity for seminal fluids to enter into the vaginal cavity then a condom provides for 100% protection. Dr. Wobeser talked about what would be required for a perfect case scenario, such as the condom being put on properly, stored properly, and having no manufacturing defects. Dr. Wobeser indicated in her evidence, “[s]o, if everything works, the best case scenario, the risk of transmission would be zero.”

[62] In her report entered as Exhibit 8, Dr. Wobeser identifies the four main factors that influence the risk of transmission as the type of sexual act; condom use; HIV viral load in the HIV-positive person; and, antiretroviral therapy (ART).

[63] On page 4 of Dr. Wobeser’s report (Exhibit 8) she discusses the Patel Study of 2014, which was a systematic review of per act risk in HIV transmission related to condom use. Dr. Wobeser’s conclusory comments related to condom use and the risk of transmission of HIV are at the bottom paragraph of page 4 of her report, which reads as follows:

Condom use – When used correctly and no breakage occurs condoms are 100% effective at stopping the transmission of HIV. Studies done at the population level which take into consideration such things as condom breakage still support a very significant reduction of risk with the use of condoms (Canadian consensus statement on HIV – Loutfy 2014). In the systematic review by Patel et al. the estimated per exposure risk associated with receptive penile-vaginal intercourse fell from 8/10,000 to 1.6/10,000 with the addition of condoms (see figure below). In a meta-analysis which included information on 45.615 serodiscordant couples Liu et al estimated that consistent condom use could prevent 99% of HIV infections (Liu 2014).

[64] In her evidence at trial, Dr. Wobeser referred to a second study on condom use, the Liu paper, which was published in 2014. The authors of the Liu paper estimated that 99% of infections were prevented with condom use. Both the Patel and Liu studies were reviews of available data on condom use. Dr. Wobeser candidly acknowledged in her evidence that the assumption in both the Patel and Liu studies was that the condom was used properly and the optimal conditions, referred to earlier, were met.

[65] Dr. Wobeser indicated that the earlier Cochrane Review, which was published in 2001, placed the prevention rate for the transmission of HIV infections with condom use in the 80 to 85% range. Dr. Wobeser indicated that she believed “the Liu study might actually be on a higher end of how much protection you get from condoms in the real world.” [Emphasis added.] When asked to clarify this in examination in-chief there was the following exchange:

Q. So, is it fair to say then that when you say higher end, what’s your feeling about where the percentage lies – is it between the 80 from the old study and the 99 of the Liu study – do you have any opinion with respect to where that number is today in the real world?

A. I would say it’s probably closer to the 80/85 number.

[66] Dr. Wobeser was then asked in examination in-chief about someone having the HIV virus, not taking antiretroviral medication but using a condom “in the proper way” and whether there was a realistic possibility of transmission of the HIV virus. Dr. Wobeser answered this question by stating that if you assume everything was done correctly with the condom the risk of transmission would be “negligible”, which she takes to mean “no realistic probability of transmission”.

[67] Dr. Wobeser identified the shift in the view of HIV experts with respect to condom use over the past years as being a shift of view “in the context of ART or effective antiretroviral therapy”. The view of the medical community now is that if a person is on a stable antiretroviral medication for a period of time the added benefits of condom use are minimized. In reference to the 2008 Swiss Statement, Dr. Wobeser testified that if a person on antiretroviral medication for six months with a fully undetectable load, the risk of transmitting HIV is “extremely low” and “there is likely to be very little added risk reduction with a condom”.

[68] In cross-examination, Dr. Wobeser acknowledged that there is a difference between clinical studies and real world studies. Dr. Wobeser indicated in her evidence that in the real world context of condom use it is 80 to 85% effective in reducing the risk of transmission and likely in her view, closer to the 80% figure. Dr. Wobeser also acknowledged in cross-examination that a low risk of transmission does not equate to no risk of transmission and that an increase in the amount of sexual activity increases the risk.

[69] In cross-examination of Dr. Wobeser, the Patel Study (Exhibit 9) was reviewed with her in some detail. Dr. Wobeser agreed that a summary of the interpretation of the findings in that report is reflected in the statement that “the risk associated with sexual intercourse was reduced most substantially by the combined use of condoms and antiretroviral treatment of HIV infected partners”.

[70] With respect to Dr. Wobeser’s opinion in her report (Exhibit 8) related to the three complainants in the case at bar, her conclusions are set out on pages 7 and 8 of her report. With respect to A.C., Dr. Wobeser assumes that the sexual encounters were in 2013 and before Mr. Goodchild was on antiretroviral medication, that a condom was used, and that his viral loads were in the 11-27,000 range. Dr. Wobeser states in her report that “in my opinion, the risk to A.C. in this time period would be considered to be negligible”. With respect to A.G., Dr. Wobeser assumes that the sexual encounters were in the year 2013 and occurred before Mr. Goodchild was receiving antiretroviral therapy, that a condom was used, and that his viral loads were in the 11-27,000 range. Dr. Wobeser states in her report that “in my opinion the risk to A.G. in this time period would be considered to be negligible.”

[71] With respect to N.W. it is worth repeating Dr. Wobeser’s opinion in its entirety, as found on pages 7 and 8 of her report:

I understand that N.W. has subsequent to my initial report in May 2017 testified that one occasion of receptive vaginal intercourse occurred in January 2014 without a condom. The most recent viral load available at that time was from November 2013 at which time it was 27,686. Mr. G. had not initiated antiviral therapy by January 2014. Based on the per-coital estimates provided by Gray below the risk would be in the range of 5-26/10,000 depending on the age of the partner for that episode and based on the viral load.

In April 2014, Mr. G. initiated antiretroviral therapy and by June of that year had a low viral load of 158 copies/ml. It is notable that this is below the threshold used in the PARTNER study which did not document any HIV transmission between partners when the viral load was below 200 copies/ml. Subsequently, in November of 2014 Mr. G.’s viral load was confirmed to be undetectable.

In my opinion, the sexual encounters that occurred after June of 2014 (and possibly as early as 1-2 weeks after initiating antiviral therapy – see viral load discussion) would be associated with a negligible risk. Based on the Rakai study where no transmission was documented with a viral load under 1500 copes/ml and the Partner study that demonstrated no evidence of HIV transmission to serodiscordant heterosexual partners with 36,000 sexual episodes where one partner was HIV negative and the other partner was on effected ART with an undetectable viral load. Overall, in my opinion, the risk of transmission after June 2014 at which time the viral load was documented to be 158 copies/ml (below the define undetectable level used in the PARTNER study) would be considered to be negligible.

[72] In cross-examination, Dr. Wobeser was asked whether the HIV carrier ejaculating in the mouth of the complainant or the complainant swallowing the ejaculate would have any impact on the risk of transmission. In response, Dr. Wobeser testified that the role of ejaculation is debated but in terms of increasing the risk, “it makes sense that it would increase risk, however, there is known to be a virus in the pre-ejaculate, so whether that’s a significant factor or not, would be debated”.

[73] In cross-examination, Dr. Wobeser indicated that she used the Patel Study to reach the conclusion that, in respect to A.C. and A.G. that the risk of transmission would be negligible. Dr. Wobeser agreed with the suggestion by Crown counsel that the Patel Study of sex with a condom is 1.6 but in that study they do not use the term “negligible”. In the Patel Study the terms high risk, low risk and no risk are used. Dr. Wobeser agreed that the only time that the Patel Study referred to a “low risk” of transmission was in reference to oral sexual activity.

[74] With respect to the current state of antiretroviral medications, Dr. Wobeser testified that:

It is generally agreed that the current regimes are extremely potent, so their antiviral activity is very high and the other significant contributor to the effectiveness of the antivirals is the use of combination therapy. So, if someone is initiating treatment or starting treatment now, almost certainly they’ll be started on what is called a single-tablet regime.

[75] Dr. Wobeser indicated that the single tablet regime first became available around 2008 and has “evolved to be better tolerated”. The medication that Nicholas Goodchild is taking was described by Dr. Wobeser as having three antivirals in a single tablet and as being “highly effective”. Dr. Wobeser indicated that 95% of the people who have gone on this type of antiretroviral medication will have an undetectable virus.

[76] Dr. Wobeser opined that if Nicholas Goodchild started his antiretroviral medication in early April 2014, then by the beginning of May 2014 his viral load would have dropped to the point where if he was using a condom the risk of transmission would be very low, reaching the level where there was no realistic possibility of transmission of the HIV virus.

[77] In her evidence, Dr. Wobeser opined that if you look at the viral loads of Nicholas Goodchild from October 2013 to April of 2014 when he started antiretroviral medication, and assume there was “correct and consistent condom use” by Mr. Goodchild, that the risk to his sexual partner was “negligible” with respect to transmission of the HIV virus. Dr. Wobeser also concludes in her report (Exhibit 8) that the risk of transmission in the acts of oral sex would also be negligible.

[78] Dr. Wobeser acknowledged in her evidence that in the Patel Review, which states that the best case scenario of combined antiretroviral medication and condom use is 99.2% effectiveness, that the majority of that 99% is gained through antiretroviral therapy.

DISCUSSIONS/ANALYSIS

[79] In Mabior, the Supreme Court of Canada contemplated the possibility of the test of whether there is a realistic possibility of transmission of the HIV virus being adjusted as a result of advances in science. At para. 94 of that decision, the Supreme Court of Canada sets out the test by stating,

The evidence adduced here satisfies me that, as a general matter, a realistic possibility of transmission of HIV is negated if:

(1) the accused’s viral load at the time of sexual relations was low; and [Emphasis added.]

(2) condom protection was used.

At para. 95 of Mabior, the court goes on to say:

The conclusion that low viral count coupled with condom use precludes a realistic possibility of transmission of HIV, and hence does not constitute a “significant risk of serious bodily harm” on the Cuerrier test, flows from the evidence in this case. This general proposition does not preclude the common law from adapting the future advances in treatment and to circumstances where risk factors other than those considered in this case are at play. [Emphasis added.]

[80] Additionally, the court in Mabior stated at para. 92:

Similarly, the day may come when researchers will find a cure for HIV, with the possible effect that HIV will cease to cause “serious bodily harm” and the failure to disclose will no longer fall under the category of fraud vitiating consent for the purposes of sexual assault.

[81] In my view, these comments by the Supreme Court of Canada, makes an examination of the scientific evidence the court had before it in Mabior as compared to the scientific evidence that exists now both relevant and necessary.

[82] In the case of Mabior the Supreme Court of Canada did not uphold the appellate decision that a low viral load or condom use was sufficient to conclude that there was not a realistic possibility of transmitting the HIV virus thereby not constituting a significant risk of serious bodily harm. The Supreme Court of Canada clearly found in Mabior that condom use alone was not enough.

[83] This court in the case at bar is being asked to find that condom use alone is sufficient in view of the new scientific evidence available and the current views of the scientific and medical community that have evolved since the Mabior case was decided in 2012.

[84] The evidence that the Supreme Court of Canada had before it in Mabior as it pertains to condom use is set out in paras. 98 and 99 of that decision. These paragraphs are worth repeating in their entirety:

[98] It is undisputed that HIV does not pass through good quality male or female latex condoms. However, condom use is not fail-safe, due to the possibility of condom failure and human error. Dr. Smith testified that consistent condom protection reduces the risk of HIV transmission by 80% relying on the widely accepted Cochrane review: S.C. Weller and K. Davis-Beaty. It was pointed out that the 80% reduction in the transmission risk refers to consistent condom use: the reduction may be larger for consistent and correct condom use, but this has not been verified empirically.

[99] The Court of Appeal, in applying a “high risk” approach, held that condom use reduces the risk of HIV transmission “below the level of significance” (para. 87). However, in my view, the evidence does not establish that condom protection alone precludes a realistic possibility of transmission, the standard proposed here. According to the expert evidence, the risk might still fall above the “negligible” threshold: Dr. Smith’s report, at p. 6. [Emphasis in original.]

[85] The scientific evidence before this court in the case at bar as it relates to condom use is, in reality, no different than the information the Supreme Court had before it in Mabior. In a perfect world where there is zero opportunity for seminal fluids to enter the vagina, where there is perfection with the application and state of the condom, the condom provides for 100% protection. However, when you move from theory to reality the protection a condom provides against the transmission of the HIV virus is in the 80 to 85% range and likely closer to 80%. This was the evidence of Dr. Wendy Wobeser. It was the same evidence that the Supreme Court of Canada had before it when deciding Mabior as set out in para. 98 of that decision. It was on the basis of this 80 to 85% condom protection rate that the Supreme Court of Canada decided condom use alone as not enough to negate the realistic possibility of transmission of the HIV virus.

[86] The act of sexual intercourse is not a theoretical concept where theoretical statistics and theories should be applied. It is, rather, a real life action where real life scenarios and real life numbers should be applied. In theory, if all is perfect it may very well be that condom use is 100% effective in transmitting the HIV virus, but the sexual act between two people is not a theoretical experience; it is a real life action where realistic approaches should be taken especially when it concerns the realistic possibility of the transmission of the HIV virus, which is still a life threatening virus if left untreated.

[87] Both the Patel study and the Liu paper were published in 2014, after the Supreme Court of Canada decided Mabior. Both Patel and Liu were referred to extensively at the trial. Both the Patel study and Liu paper talked about condoms being used correctly and no breakage occurring and based conclusions on theory rather than on a real life analysis. It is interesting to note that when Dr. Wobeser was asked about the ranges based on the old studies at 80% effectiveness to the Liu and Patel studies of 99% effectiveness, Dr. Wobeser placed the number “closer to 80/85” when discussed in terms of the real world. Again, this is the same range of real world effectiveness that the Supreme Court of Canada had by way of scientific evidence when that court decided Mabior.

[88] In my view, when the scientific evidence as a whole is examined with respect to condom use in real life situations, nothing has changed in the past five years from the time Mabior was decided in 2012 to the present day in 2017.

[89] The same cannot be said about the antiretroviral medications. At the time Mabior was decided the Supreme Court of Canada indicated that it was scientifically accepted that antiretroviral therapy will reduce or shrink the viral load (see para. 100). Having said this, the Supreme Court of Canada indicated at paragraph 101 of its decision that, “...This evidence indicates that antiretroviral therapy, alone, still exposes a sexual partner to a realistic possibility of transmission...” Antiretroviral therapy alone was not enough. Condom use was not enough. The Supreme Court of Canada concluded that the combined effected of both was required so “that the risk is reduced to a speculative possibility rather than a realistic possibility”.

[90] As indicated by Dr. Wendy Wobeser in her evidence at trial there has been tremendous strides made with respect to antiretroviral therapy and medication and its level of effectiveness. Ninety-five percent of the people who have gone on single tablet antiretroviral medication will have an undetectable virus. The scientific evidence is that if a person is on an antiretroviral treatment program and is taking the prescribed medication, their viral loads will be reduced to the point where there is no realistic possibility of transmission of the HIV virus. It seems to me if there have been any changes in scientific evidence that would warrant a revision of the test in Mabior it would be in the area of antiretroviral medication and treatment. The benefits of condom use appear to be minimal if a person is on effective antiretroviral medication. Science may have reached the point where antiretroviral medication and treatment is enough to conclude that there is no realistic possibility of transmitting the HIV virus. However, that is not the case before me. Mr. Goodchild did not start his antiretroviral medication and treatment until April 2014, after the sexual encounters he had with A.C., A.G., and N.W. This court is being asked to conclude that Mr. Goodchild’s condom use alone was enough to negate the realistic possibility of transmission of the HIV virus. On the totality of the evidence before me, I cannot reach that conclusion.

[91] After submissions were received, counsel brought to my attention the case of R. v. C.B., 2017 ONCJ 545, which is a recent decision of the Ontario Court of Justice. I have reviewed and considered that case. In that case, the court received expert evidence that a person with the HIV virus and an undetectable viral load, transmission of the virus would not occur. The use of a condom would be inconsequential if the viral load was undetectable in respect to the transmission of the HIV virus. In considering the effect of this decision in the case I am to decide, I agree with the position taken by the Crown that the C.B. case is distinguishable on its facts. In that case the accused had an undetectable viral load for over six months. This is not the case with Nicholas Goodchild who had a detectable viral load in all his acts of sexual intercourse involving the complainants, A.C., A.G., and N.W. In addition, the case is not binding on this court in arriving at a decision in any event.

[92] I am not persuaded by the reasons set out in R. v. Thompson, 2016 NSSC 134, which is a decision of the Supreme Court of Nova Scotia which does not bind me. In that case, the court concluded that condom use was almost 100% effective based on the scientific evidence before it. This was not the scientific evidence before me and such a conclusion, in my view, is dangerous given the abundant and unaltered evidence of the range of effectiveness for condoms in real life situations. This court is bound by the decisions of the Ontario Court of Appeal, and that court in the cases of R. v. Felix, 2013 ONCA 415, and R. v. Mekonnen, [2013] ONCA 414 applied the test set out by the Supreme Court of Canada in Mabior.

[93] In the case of Felix, Cronk J.A., speaking for the majority, indicated that condom use was a crucial consideration with respect to a charge of aggravated sexual assault. After discussing Mabior, Cronk J.A. stated at para. 57 in Felix:

It follows, in my opinion, 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. On the Mabior standard, even if the evidence had established that the appellant had a low viral load at the time of intercourse with N.S. and M.F., a realistic possibility of HIV transmission would not have been negated.

[94] The Ontario Court of Appeal in Felix goes on to state at para. 62 of its decision:

...I again underscore that on the holdings of the Mabior court, the negation of a realistic possibility of transmission of HIV requires proof that the accused’s viral load at the time of sexual relations was low and that condom protection was used. [Emphasis in original.]

[95] The case of Mekonnen is a companion case of Felix¸ referred to above, in which the Ontario Court of Appeal applied the test set out by the Supreme Court of Canada in Mabior. The current state of appellate authority in Ontario is the test in Mabior. This test requires both a low viral load and the use of a condom negate the realistic possibility of HIV transmission and has been applied in cases of aggravated sexual assault.

CONCLUSION

[96] On the totality of the evidence, I am not convinced that there has been any fundamental change to the science when Mabior was decided in 2012 to the present day which would require an alteration to the test set out in Mabior which would point that condom use alone would mean that there is not a realistic possibility of the transmission of the HIV virus. In my view, the two-part test set out in Mabior, namely that the infected person have a low viral count as a result of treatment and that there be condom protection before the threshold of a realistic possibility of transmission is not met.

[97] In offences of sexual assault it is useful to reflect upon Chief Justice McLachlin’s comments at para. 48 in Mabior:

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 [...]

[98] On the totality of the evidence before me, I am satisfied of the following facts as they relate to the complainants A.C., A.G., and N.W.:

(a) that Nicholas Goodchild was HIV-positive at the time he had sexual intercourse with A.C., A.G., and N.W.;

(b) that Nicholas Goodchild knew that he was HIV-positive at the time he had sexual intercourse with A.C., A.G., and N.W.;

(c) that Nicholas Goodchild did not disclose to A.C., A.G., or N.W. that he was HIV-positive before he had sexual intercourse with them;

(d) that A.C., A.G., and N.W. would not have engaged in sexual intercourse with Nicholas Goodchild if they had known of his positive HIV status;

(e) that Nicholas Goodchild used condom protection during each of his acts of sexual intercourse with A.C., A.G., and N.W.; and

(f) that Nicholas Goodchild did not start antiretroviral medication and treatment until April 3, 2014. Mr. Goodchild’s viral count loads were not low until May 2014, at the earliest, which was after his sexual encounters with A.C., A.G., and N.W.

[99] Since there is not the combined effect of a low viral load and condom use at the time Nicholas Goodchild had sexual intercourse with A.C., A.G., and N.W., there exists, in law, a realistic possibility of HIV transmission during the occurrences of sexual intercourse that Nicholas Goodchild had with A.C., A.G., and N.W.

[100] The aforementioned facts having been established beyond a reasonable doubt on the evidence before me, this court concludes that the essential elements in the offence of aggravated sexual assault, contrary to s.273(1) of the Criminal Code of Canada have been established by the Crown, and accordingly, the accused Nicholas Goodchild is found guilty of counts 2, 3 and 4 as it relates to the complainants A.C., A.G., and N.W. in the indictment dated March 1, 2016

Gareau J.

Released: November 15, 2017