As a result of his alleged non-disclosure of his HIV-positive status to 3 complainants prior to engaging in sexual relations, the appellant (defendant), Lester Felix, was convicted of five counts of aggravated sexual assault and one count of sexual assault.
Felix appealed all convictions. There was no evidence of the appellant’s level of risk of transmission. The complainants testified that no condoms were used on any occasion of sexual intercourse (with the exception of one complainant) and that Felix did not disclose his HIV-positive status prior to sexual intercourse.
The court allowed the appeal and ordered a new trial for the sexual assault charge in the case where condom was used. The court dismissed the appeals on all other counts.
The court relied on two precedent cases: R v. Cuerrier [1998] 2 SCR 371 and R v. Mabior 2012 SCC 47. Cuerrier established that non-disclosure of HIV-positive status may constitute fraud that vitiates consent to sexual intercourse. The two requirements for fraud are 1) dishonesty and 2) deprivation or risk of deprivation. Non-disclosure of HIV prior to sexual relations meets the dishonesty requirement. Mabior established that a “realistic possibility of transmission of HIV” amounts to a “significant risk of bodily harm”. This meets the second requirement of deprivation or risk of deprivation. Mabior also held that because of the significant risk of bodily harm, the operative offense for failure to disclose HIV-positive status is aggravated sexual assault, not sexual assault.
In the incident of sexual intercourse between the appellant and M.F, where a condom was used, the trial court convicted the appellant of a lesser offence of sexual assault as opposed to aggravated sexual assault on the basis of evidence that a condom was used. On appeal, the Court stated that negating a realistic possibility of transmission of HIV requires both a low viral load and condom protection. Since no evidence was tendered in respect of the viral load, the court ordered a new trial on this count.
The court rejected Felix’s arguments against the aggravated sexual assault convictions because on those occasions, he did not disclose his HIV status and did not use a condom. Accordingly, it did not matter that there was no evidence of Felix’s viral load at the time of sexual intercourse.
“In my view, this argument is unsustainable. On the appellant’s reasoning, any case that differs from the precise factual makeup considered in Mabior would require expert evidence to establish a baseline infection risk. Mabior does not suggest that expert evidence of the basic risk of HIV transmission for intercourse will be required in every case to ground a conviction for aggravated sexual assault arising from unprotected acts of intercourse – anal or vaginal – with an HIV–positive partner. Rather, Mabior holds that a realistic possibility of transmission of HIV is negated by evidence that condom protection was used and the accused’s viral load was low at the time of intercourse: see Mabior at para. 104.” (para 53).
“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.” (para 57)
“I agree. On the basis of Mabior, non-disclosure of HIV status is sufficient to establish the dishonest act requirement of fraud but it does not establish the requirement of deprivation or risk of deprivation. The trial judge’s basis for conviction effectively eliminates the deprivation element of fraud and fails to recognize that disclosure of HIV–positive status is not always required, as a matter of law. Only where there is a realistic possibility of HIV transmission is disclosure of HIV–positive status obligatory: see Mabior, at paras. 66, 67 and 91.” (para 61)
The appellant’s actions were callous and reflected a significant degree of indifference to the consequences of his actions for two women whom the trial judge found to be vulnerable, each in their own way. The fact that neither complainant actually contracted HIV is irrelevant. (para 71)
