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SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
D.C.
Respondent
-
and -
Attorney
General of Alberta, Canadian HIV/AIDS Legal Network, HIV & AIDS Legal
Clinic Ontario, Coalition des organismes communautaires québécois de lutte
contre le sida, Positive Living Society of British Columbia, Canadian AIDS
Society, Toronto People With AIDS Foundation, Black Coalition for AIDS
Prevention, Canadian Aboriginal AIDS Network, Criminal Lawyers’ Association of
Ontario, British Columbia Civil Liberties Association, Association des avocats
de la défense de Montréal and Institut national de santé publique du Québec
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein,
Cromwell, Moldaver and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 31)
|
McLachlin C.J. (LeBel, Deschamps, Fish,
Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. concurring)
|
R. v. D.C., 2012 SCC 48, [2012] 2 S.C.R. 626
Her Majesty
The Queen Appellant
v.
D.C. Respondent
and
Attorney General of Alberta,
Canadian HIV/AIDS Legal Network,
HIV & AIDS Legal Clinic Ontario,
Coalition des organismes communautaires québécois de lutte contre le sida,
Positive Living Society of British Columbia, Canadian AIDS Society, Toronto
People With AIDS Foundation,
Black Coalition for AIDS Prevention,
Canadian Aboriginal AIDS Network,
Criminal Lawyers’ Association of
Ontario,
British Columbia Civil Liberties
Association,
Association des avocats de la défense de
Montréal and
Institut
national de santé publique du Québec Interveners
Indexed as: R. v. D.C.
2012 SCC 48
File No.: 34094.
2012: February 8; 2012: October 5.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein, Cromwell, Moldaver and Karakatsanis JJ.
on appeal from the court of appeal for quebec
Criminal law — Evidence — Credibility — Sexual
assault and aggravated assault — Non‑disclosure of HIV status — Proof of
realistic possibility of transmission of HIV — Whether trial judge could rely
on doctor’s note as confirmatory evidence of complainant’s testimony that no condom
had been used — Whether trial judge committed error on question of law —
Criminal Code, R.S.C. 1985, c. C‑46, ss. 265(3) (c), 268 , 271 ,
686(1) (a)(ii).
D.C.
was charged with sexual assault and aggravated assault. When she first engaged
in vaginal intercourse with the complainant, she had not disclosed to him the
fact that she was HIV‑positive. At the time, her viral load was
undetectable. The critical issue in the trial was whether a condom had been
used. The only evidence on
the point was that of the complainant and D.C. The complainant testified no
condom was used; D.C. testified a condom was used. The trial judge found that
neither witness was credible. However, on the basis of a note of D.C.’s doctor made
seven years earlier and referring to a broken condom, the judge concluded that
D.C. had lied to her doctor, and inferred that no condom had been worn. He convicted D.C. The Court of Appeal concluded that the trial
judge’s reasoning as to whether a condom was used was a reasonable inference,
but set aside the convictions on the ground that even without condom use, the
requirement of a significant risk of serious bodily harm was not met, given the
absence of detectable HIV copies in D.C.’s blood.
Held:
The appeal should be dismissed.
As
discussed in R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, in the case of HIV, a significant risk of
serious bodily harm is found in the presence of a realistic possibility of
transmission. On the facts of this case, condom use was required to preclude a
realistic possibility of HIV transmission. Given the lack of credibility of
the complainant, the trial judge needed evidence that a condom had not been
used in order to convict. Here, he erred in law in relying on speculation as
confirmatory evidence of the complainant’s testimony that a condom had not been
used. He could not rely on a series of speculative conclusions about a
supposed lie and the motives for it, based on a note made seven years earlier
that did not constitute independent evidence. It follows that the prosecution
failed to prove D.C.’s guilt on the charges against her beyond a reasonable
doubt.
Cases Cited
Applied:
R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; referred to: R.
v. Cuerrier, [1998] 2 S.C.R. 371.
Statutes and Regulations Cited
Criminal
Code, R.S.C. 1985, c. C‑46, ss. 265(3) (c), 686(1) (a)(ii).
APPEAL from a judgment of the Quebec Court of Appeal (Chamberland,
Léger and Gagnon JJ.A.), 2010 QCCA 2289, 270 C.C.C. (3d) 50, [2011] R.J.Q. 18,
81 C.R. (6th) 336, [2010] Q.J. No. 13599 (QL), 2010 CarswellQue 14778, SOQUIJ
AZ-50700564, setting aside the convictions for sexual assault and aggravated
assault entered by Bisson J.C.Q., 2008 QCCQ 629, [2008] J.Q. no 994
(QL), 2008 CarswellQue 986, SOQUIJ AZ-50473926. Appeal dismissed.
Caroline Fontaine and
Magalie Cimon, for the appellant.
Christian Desrosiers,
for the respondent.
Christine Rideout,
for the intervener the Attorney General of Alberta.
Jonathan Shime, Corie
Langdon, Richard Elliott and Ryan Peck, for the interveners the Canadian
HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario, Coalition des
organismes communautaires québécois de lutte contre le sida, the Positive
Living Society of British Columbia, the Canadian AIDS Society, the Toronto
People With AIDS Foundation, the Black Coalition for AIDS Prevention and the
Canadian Aboriginal AIDS Network.
P. Andras Schreck and Candice Suter, for the intervener the Criminal Lawyers’
Association of Ontario.
Michael A. Feder and Angela M. Juba, for the intervener the British
Columbia Civil Liberties Association.
François Dadour, for the intervener Association des avocats de la défense de Montréal.
Lucie Joncas and François
Côté, for the intervener Institut national de santé publique du Québec.
The
judgment of the Court was delivered by
The
Chief Justice —
I. Introduction
[1]
This appeal, like the
companion appeal, R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, raises
the question of when an HIV-positive person’s failure to disclose the condition
to a sexual partner amounts to fraud vitiating consent under s. 265(3) (c)
of the Criminal Code, R.S.C. 1985, c. C-46 , with the result that
the sexual act constitutes the offence of aggravated sexual assault. In Mabior,
I hold that the realistic possibility of transmission of HIV should be
disclosed and that the failure to do so amounts to fraud.
[2]
In this case, D.C.’s
viral load was undetectable, and the trial judge found no condom protection was
used on one occasion before HIV status was disclosed (2008 QCCQ 629 (CanLII)).
The Court of Appeal set aside the convictions on the ground that even without
condom use, the requirement of a significant risk of serious bodily harm in the
prior jurisprudence was not met, given the absence of any detectable HIV copies
in D.C.’s blood (2010 QCCA 2289, 270 C.C.C. (3d) 50). This is contrary to the
standard now proposed in Mabior. On the facts of this case,
condom use was required to preclude a realistic possibility of HIV
transmission.
[3]
However, I would
dismiss the appeal but set aside the conviction on the ground that the trial
judge erred in law in relying on speculation as confirmatory evidence in order
to convict. But for this error, the trial judge would have acquitted D.C.
Accordingly, the conviction cannot stand: s. 686(1) (a)(ii) of the Criminal
Code .
II. The Facts
[4]
D.C. learned that she
was HIV-positive in 1991, after the death of her partner. She was treated with
antiretrovirals, resulting in the undetectability of her viral load. In July
of 2000, she met the complainant at a soccer match in which their sons were
playing. In time, their relationship became intimate. Depending on whose
account is believed, they had sex on one or more occasions before D.C.
disclosed her HIV status to the complainant. And depending on who was
believed, a condom was or was not used; the complainant said no condom was
used; D.C. said a condom was used.
[5]
Upon learning that D.C.
had HIV, the complainant broke off the relationship, but renewed it of his own
initiative a few weeks later. They moved in together and lived as a family for
four years. During this time, they had protected and unprotected sexual
relations. The complainant has never contracted HIV.
[6]
In December 2004, D.C.,
who had been briefly hospitalized, decided to end the relationship. She asked
the complainant to leave the house. He refused. A few days later, D.C.,
accompanied by her son, went to the family home to remove her belongings. The
encounter was violent. The complainant assaulted D.C. and her son. He was
charged and convicted of assault.
[7]
On February 11, 2005,
the complainant filed complaints with the police. The Crown laid charges of
sexual assault and aggravated assault against D.C., on the ground that when the
complainant and D.C. first had sex four years earlier, D.C. had not disclosed
the fact that she was HIV-positive.
III. The Trial Judgment, 2008 QCCQ 629 (CanLII)
[8]
The trial judge, after
a long and detailed assessment of the evidence, concluded that neither the
complainant nor D.C. were credible witnesses.
[9]
The trial judge found
that there was one sexual encounter before disclosure, accepting D.C.’s
evidence in preference to the complainant’s on this point.
[10]
The trial judge then
addressed the requirement in R. v. Cuerrier, [1998] 2 S.C.R. 371, of a
“significant risk of serious bodily harm” for there to be sexual assault from
non-disclosure of HIV status. The evidence was that engaging in vaginal
intercourse carried with it a basic infection risk of 0.1% — similar to the basic infection risk for Mr. Mabior — according to medical experts (para. 179). The trial judge correctly
concluded that two facts were relevant to preclude a realistic possibility of
transmission: (1) D.C.’s undetectable viral load; and (2) whether a condom was
used.
[11]
The critical issue in
the trial was whether a condom had been used on the single occasion of
pre-disclosure sex. The evidence on this conflicted. The complainant
testified for the prosecution that no condom had been used. D.C., however,
testified that a condom had been used.
[12]
The only evidence
called by the prosecution on the issue of whether a condom was used on the
pre-disclosure sexual contact was that of the complainant. The trial judge
concluded that he could not accept the evidence of the complainant generally.
More particularly, he found that the complainant’s evidence, on its own, did
not establish failure to use a condom on the relevant
occasion. He found the
credibility of the complainant to be undermined by the following:
• His
behaviour during the long period that followed the initial sexual encounter,
including sexual encounters during the four-year period of cohabitation with
full knowledge of D.C.’s condition, waiting four years to make a complaint, and
the aura of vengeance that surrounded the making of the complaints (paras.
152-54);
• The manner
in which he gave his evidence (para. 152);
• The fact
that he was mistaken as to the place of the pre-disclosure sexual encounter(s)
(para. 155);
• Lack of
precision as to the number of pre-disclosure sexual encounters (para. 155);
• Inconsistencies
with the evidence of Dr. Klein, D.C.’s physician at the time; he stated that he
discussed with Dr. Klein the unprotected relations he had had with D.C., but
Dr. Klein had no memory or notes of such discussions, leading the trial judge
to conclude they had not taken place (para. 156);
• The fact
that he referred to having met Dr. Klein at all the medical appointments, but
that Dr. Klein did not mention this in her evidence (para. 157);
• His denial
that he told the police officer: (1) that his partner had HIV and had infected
him; (2) that he did not use a condom because he did not like to do so; and (3)
that he continued to have unprotected sexual relations with D.C. after she
disclosed her condition. On these points, the trial judge said he had no reason
to reject the testimony of the police officer (para. 158).
[13]
The trial judge went on
to hold that while the credibility of the complainant was tainted by these
considerations, there was independent proof that permitted him to infer that a
condom had not been used. This evidence, he said, confirmed the complainant’s
evidence that a condom had not been used on the single occasion of
pre-disclosure sex (para. 159).
[14]
According to the trial
judge, the medical note written by Dr. Klein and the inferences he drew from it
amounted to [translation]
“independent evidence” confirming the complainant’s evidence of unprotected sex
(para. 159). Dr. Klein had no independent recollection of her conversation
with D.C., only what was mentioned in her note: “Sex c new partner — condom
broke — consl to disclo”.
[15]
From this, the trial
judge drew a series of inferences. He took for granted that D.C. told Dr.
Klein a condom was worn but had broken (para. 160). He inferred this was a lie
by assuming she wanted to camouflage from her doctor the fact that she had
unprotected sex (para. 168). From this inference of a lie, the trial judge
drew a further inference that no condom had been used, confirming the complainant’s
evidence on that point (para. 171). On this basis, the trial judge concluded
the prosecution had established beyond a reasonable doubt that D.C. was guilty
of sexual assault and aggravated assault.
IV. The Court of Appeal, 2010 QCCA 2289, 270 C.C.C. (3d) 50
[16]
One of D.C.’s main
grounds of appeal was that the trial judge had erred in inferring that a condom
was not used on the basis of Dr. Klein’s evidence, because (a) the evidence was
privileged; (b) D.C. had been improperly cross-examined on the note; and (c)
the judge erred in characterizing the evidence as “independent evidence” that a
condom had not been used, and the judge’s inferences from it amounted to
speculation.
[17]
I agree with the Court
of Appeal that the first two submissions in support of this ground of appeal
are without merit. However, with respect, I cannot agree that the third should
be dismissed.
[18]
On the third argument,
the Court of Appeal correctly concluded that Dr. Klein’s note that D.C.
had spoken of a broken condom was not independent evidence, and that the trial
judge had erred in treating it as such. The Court of Appeal stated:
[translation] Regarding the medical visit
on August 31, 2000, Dr. Klein testified from her patient file. She had no
memory of [D.C.’s] remarks. This is not, in my opinion, independent evidence.
The notes put in the medical file do nothing more than convey, in abridged
form, [D.C.’s] remarks of August 31, 2000, seven years before the trial and
four years before the charges. [para. 52, per Chamberland J.A.]
[19]
However, having
concluded that Dr. Klein’s evidence was not independent evidence, the Court of
Appeal went on:
[translation] Regardless of the exact
characterization of this evidence, however, the trial judge infers from the lie
he attributes to [D.C.] that her first sexual encounter with the complainant
was unprotected, thus confirming the complainant’s version. [para. 53]
The
question, the court said, was whether this was a reasonable inference or mere
speculation. It concluded that the trial judge’s reasoning was a reasonable
inference to draw from [translation]
“what he considered to be [D.C.’s] lie to her doctor”.
[translation] From the moment the judge,
who had the opportunity to hear and assess [D.C.’s] testimony regarding the
visit to Dr. Klein, concluded that [D.C.] had lied regarding the use of a
condom, he was perfectly free to infer that a condom had not been used. [para.
56]
This
was a factual inference, the court concluded, not speculation.
[20]
However, the Court of
Appeal went on to state that when the judge tried to explain why D.C. had lied
to her doctor — that she wanted to camouflage her omission by reassuring her
doctor — he was speculating.
[translation] People lie for all manner
of reasons. Why accept this explanation rather than another? I believe that,
on this point, the judge was speculating. But the fact that this part of the
trial judge’s reasoning constitutes conjecture does not affect the validity of
the inference of fact drawn from [D.C.’s] lie to her doctor concerning the use
of a condom. [para. 60]
V. The Problem
[21]
The trial judge found
both the complainant and D.C. to lack credibility, but convicted D.C. on the
basis that there was independent evidence confirming the complainant’s evidence
that no condom was worn on the incident of pre-disclosure sex. The central
problem is that, as explained below, there was no evidence, independent or
otherwise, capable of corroborating the complainant’s contention that a condom
was not used on the first sexual encounter.
[22]
The evidence relied on
by the trial judge as confirmation that no condom was worn was based on
inferences from a note in the respondent D.C.’s doctor’s records. For the
following reasons, I conclude that the note and inferences are not evidence
capable of confirming the complainant’s otherwise unsatisfactory evidence. As
a consequence, the verdict must be set aside.
[23]
First, as discussed,
the note did not confirm that a condom had not been worn on the critical
occasion. Rather, it said one had been worn, but broke.
[24]
Second, the note is of
dubious evidentiary quality. It was made in the course of a client interview,
seven years earlier. Dr. Klein had no independent recollection of its
contents. The note is cryptic: “Sex c new partner — condom broke — consl
to disclo”. The possibility of miscommunication or inaccurate transcription
cannot be discounted. (The conversation was in French, but Dr. Klein’s first
language was English.)
[25]
Third, the trial
judge’s inference from the note that D.C. lied to her doctor is
speculative. He took as true that D.C. had told Dr. Klein that a condom was
worn but had broken. D.C. testified that she expressed her fear that the
condom might have broken to Dr. Klein. The trial judge rejected her
explanation for “condom broke” in the note as inadequate. But that does not
establish that D.C. also lied to Dr. Klein with respect to the use of a condom,
on which both her testimony and the medical note are consistent. The trial
judge’s conclusion that D.C. lied to Dr. Klein regarding the use of a condom
lacks an evidentiary basis and, as such, is speculative.
[26]
Fourth, the trial
judge’s further inference that D.C. “lied” to conceal from her doctor the
fact she had had unprotected sex was speculative. Having concluded that
D.C. lied to her doctor, the trial judge asked, [translation] “Why did she not tell her doctor the truth?”
He then answered: “The only inference that can be drawn is that she wanted to
hide from her doctor the carelessness she had shown in having unprotected
sexual relations with a new partner, the complainant” (paras. 167-68). As the
Court of Appeal pointed out, people may lie for many reasons. To fix on one
possibility among others is speculative.
[27]
The Court of Appeal
concluded that the speculative nature of the trial judge’s finding that D.C.
lied to her doctor to hide the fact that she had had unprotected sex with the
complainant did not matter. The court said, at para. 60: [translation] “But the fact that this
part of the trial judge’s reasoning constitutes conjecture does not affect the
validity of the inference of fact drawn from [D.C.’s] lie to her doctor
concerning the use of a condom”. With respect, it did matter. There is a
distinction between speculation and evidence.
[28]
In brief, the trial
judge needed evidence confirming that a condom had not been used in order to
convict, given the lack of credibility of the complainant. He purported to
find that evidence in a conclusion that D.C. lied to her doctor to hide the
fact that a condom had not been used. But when his reasoning is deconstructed,
what emerges is not evidence, but a series of speculative conclusions about a
supposed lie and the motives for it based on a note made seven years earlier
that did not constitute independent evidence. The tissue of speculation on
which the trial judge relied was not independent evidence confirming the
testimony of the complainant, which the trial judge would otherwise have
rejected.
VI. Disposition
[29]
To convict, it was
necessary to establish beyond a reasonable doubt that D.C. failed to disclose
her HIV status to the complainant, where there was a significant risk of
serious bodily harm. As discussed in Mabior, a significant risk of
serious bodily harm, in the case of HIV, is found in the presence of a
realistic possibility of transmission and is negated by both low viral load and
condom protection. Here low — indeed undetectable — viral load was
established. The critical issue on the trial was therefore whether a condom
was used on the single pre-disclosure act of sexual intercourse between the
complainant and D.C.
[30]
The only evidence on
the point was that of the complainant and D.C. The complainant testified no
condom was used; D.C. testified a condom was used. The trial judge found that
neither witness was credible. If the matter had ended there, D.C. would have
been acquitted, since the prosecution bears the burden of proving guilt beyond
a reasonable doubt. However, as discussed above, the trial judge went on to
find independent evidence confirming the complainant’s testimony that no condom
was used, in the note of D.C.’s doctor referring to a broken condom. He
concluded from this note that D.C. had lied to her doctor, and went on to infer
from the “lie” that no condom had been worn. The speculative edifice the trial
judge built on a single hearsay note made seven years before the trial does not
constitute evidence that no condom was used. It follows, on the trial judge’s
analysis, that the prosecution failed to prove D.C.’s guilt on the charges
against her beyond a reasonable doubt. Accordingly, the verdict must be set
aside.
[31]
I would therefore
dismiss the appeal.
Appeal dismissed.
Solicitor
for the appellant: Poursuites criminelles et pénales du Québec,
Longueuil.
Solicitors for
the respondent: Desrosiers, Joncas, Massicotte, Montréal.
Solicitor for the
intervener the Attorney General of Alberta: Attorney General of
Alberta, Calgary.
Solicitors for
the interveners the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal
Clinic Ontario, Coalition des organismes communautaires québécois de lutte
contre le sida, the Positive Living Society of British Columbia, the Canadian
AIDS Society, the Toronto People With AIDS Foundation, the Black Coalition for
AIDS Prevention and the Canadian Aboriginal AIDS Network: Cooper
& Sandler, Toronto.
Solicitors for
the intervener the Criminal Lawyers’ Association of Ontario: Schreck
Presser, Toronto.
Solicitors for
the intervener the British Columbia Civil Liberties Association: McCarthy
Tétrault, Vancouver.
Solicitors for
the intervener Association des avocats de la défense de Montréal: Poupart,
Dadour, Touma et Associés, Montréal.
Solicitors for the intervener Institut national
de santé publique du Québec: Desrosiers, Joncas, Massicotte,
Montréal.