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CRIMINAL CODE OFFENCES - Assaults - Sexual assault causing bodily harm - Consent

Monday, March 05, 2018 @ 8:52 AM  

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Appeal by the accused from convictions for sexual assault causing bodily harm. The appellant was charged with aggravated sexual assault. The Crown alleged that he failed to disclose his HIV-positive status to two complainants, and they would not have consented to sexual intercourse had they known. One complainant admitted that a condom was used, the other insisted one was not. Neither contracted HIV. At trial, the appellant testified that he had told the complainants of his HIV status, and a condom was used during intercourse with each complainant. The appellant had been on antiviral drug therapy. There was a lapse in his therapy and a recommencement. The trial judge found that the Crown had not established a realistic possibility of HIV transmission and acquitted the appellant on the two counts of aggravated sexual assault. The trial judge accepted, however, the Crown’s submission that the complainants had suffered psychological harm caused by the uncertainty in not knowing whether the virus had been transmitted. The trial judge found that the psychological harm caused by the complainants’ worry and uncertainty amounted to deprivation. Coupled with the deceit by non-disclosure, the complainants’ consent was vitiated. She found the appellant guilty of the lesser and included offences of sexual assault causing bodily harm.

HELD: Appeal allowed. The appellant was acquitted. The sole test to establish deprivation was actual transmission of HIV or a realistic possibility of HIV transmission. Consent was not vitiated by deception about being HIV-positive in circumstances that negated a realistic possibility of HIV transmission. Emotional stress or upset, even if they could legitimately amount to bodily harm within the meaning of the Criminal Code, were, in the eyes of the law, irrelevant. Stress from being lied to, however despicable, was simply not sufficient to vitiate consent for the purposes of the criminal law. Because the Crown could not negate consent, a conviction for any lesser and included assault offence was simply not available.

R. v. Thompson, [2018] N.S.J. No. 35, Nova Scotia Court of Appeal, D.R. Beveridge, J.E. Fichaud and L.L. Oland JJ.A., February 15, 2018. Digest No. TLD-Mar52018001