



WARNING

The
    President of the panel hearing this appeal directs that the following should be
    attached to the file:

An
    order restricting publication in this proceeding under ss. 486.4(1), (2), (3)
    or (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4       (1)
Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the complainant or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)       any
    of the following offences;

(i)   an
    offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170,
    171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada, 1970,
    as it read immediately before January 1, 1988; or

(b)       two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2)
In proceedings in
    respect of the offences referred to in paragraph (1)(a) or (b), the presiding
    judge or justice shall

(a)  at
    the first reasonable opportunity, inform any witness under the age of eighteen
    years and the complainant of the right to make an application for the order;
    and

(b)  on
    application made by the complainant, the prosecutor or any such witness, make
    the order.

(3)
In proceedings in
    respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)
An order made under
    this section does not apply in respect of the disclosure of information in the
    course of the administration of justice when it is not the purpose of the
    disclosure to make the information known in the community. 2005, c. 32, s. 15;
    2005, c. 43, s. 8(3)(b).

486.6       (1)
Every person who fails to comply
    with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)
For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Felix, 2013
    ONCA 415

DATE: 20130621

DOCKET: C54210

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lester Felix

Appellant

Vincenzo Rondinelli, for the appellant

Kim Crosbie, for the respondent

Heard: February 11, 2013

On appeal from the convictions entered by Justice Kelly Wright
    of the Ontario Court of Justice on July 14, 2010, and from the sentence imposed
    on December 1, 2010, with reasons reported at 2010 ONCJ 322 and 2010 ONCJ 654.

Cronk J.A.:

I.        Introduction
[1]

[1]

The appellant, Lester Felix, was diagnosed with HIV in mid-September
    2005. Shortly thereafter, he attended a counselling session where he was informed
    of his obligation to disclose his HIVpositive status to all his sexual
    partners.

[2]

The appellant was subsequently charged on a multi-count information with
    seven counts of aggravated sexual assault involving three different
    complainants arising from his alleged failure to disclose his HIVpositive status
    to the complainants prior to engaging in sexual relations.

[3]

On July 14, 2010, following a trial before Wright J. of the Ontario
    Court of Justice, the appellant was convicted of one count of aggravated sexual
    assault in relation to the complainant, N.S. (Count 1), four counts of
    aggravated sexual assault in respect of the complainant, M.F. (Counts 5, 6, 7
    and 8), and two counts of breach of probation (Counts 2 and 3).  He was
    acquitted of a fifth count of aggravated sexual assault pertaining to M.F.
    (Count 4), but convicted of the lesser and included offence of sexual assault. 
    He was also acquitted of one count of aggravated sexual assault concerning a
    third complainant, D.H. (Count 9).
[2]


[4]

On December 1, 2010, the appellant was sentenced to a global sentence of
    five years imprisonment, less two and one-half years credit for pre-sentence
    custody.  On his endorsement of the information against the appellant, the
    trial judge apportioned this sentence as follows: Count 1  two and one-half
    years imprisonment, plus credit for pre-sentence custody; Counts 2 and 3 
    three months imprisonment on each count, concurrent to Count 1; Count 4
    (sexual assault)  two years imprisonment, concurrent to Count 1; Count 5 
    two and one-half years imprisonment, concurrent to Count 1; and Counts 6, 7 and
    8  two and one-half years imprisonment on each count, concurrent to Count 5. 
    A lifetime weapons prohibition order, a lifetime order under the
Sex
    Offenders Information Registration Act
, S.C. 2004, c. 10, and a DNA data
    bank order were also imposed.

[5]

The appellant appealed all his convictions on the ground that the
    verdicts were unreasonable.  He also sought leave to appeal his sentence and,
    if granted, sought a reduction in his sentence.

[6]

While the appellants appeals were pending, the Supreme Court of
    Canadas decisions in
R. v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584,
    and
R. v. D.C.
, 2012 SCC 48, [2012] 2 S.C.R. 626, were released.  In
Mabior
,
    the Supreme Court revisited and clarified the test set out in
R. v.
    Cuerrier
, [1998] 2 S.C.R. 371, for determining whether and in what
    circumstances the failure to disclose HIVpositive status prior to sexual
    activity may constitute fraud vitiating consent to sexual relations.

[7]

Mabior
holds, at paras. 104105, that to obtain a conviction
    for aggravated sexual assault under the
Criminal Code
, R.S.C. 1985, c.
    C-46, the Crown must prove that a complainants consent to sex was vitiated by
    the accuseds fraud as to his HIV status.  The accuseds failure to disclose
    his or her HIVpositive status constitutes fraud where the complainant would
    not have consented to sex if he or she had known that the accused was
    HIVpositive and where sexual contact poses a significant risk of, or causes
    actual, serious bodily harm.

[8]

In this context, the Supreme Court held in
Mabior
, at para. 84,
    that a significant risk of serious bodily harm within the meaning of
Cuerrier
is established by showing 
a realistic possibility of transmission of HIV

    (emphasis in original).  The court further held, at para. 101, that a realistic
    possibility of HIV transmission is negated by evidence that condom protection
    was used and that the accuseds viral load was low at the time of intercourse.

[9]

In this case, relying on
Mabior
, the Crown argues that: (1) the
    conviction appeal should be dismissed or, in the alternative, a new trial
    should be ordered regarding the appellants convictions for aggravated sexual
    assault pertaining to N.S. and M.F.; and (2) the conviction appeal in respect
    of the appellants sexual assault conviction concerning M.F. should be allowed
    and a new trial ordered. The Crown does not appeal the acquittal entered in
    relation to the charge of aggravated sexual assault respecting D.H.  The Crown,
    however, does resist the appellants sentence appeal.

[10]

For
    the reasons that follow, I would allow the appellants appeal from his sexual
    assault conviction and direct a new trial on that charge (Count 4).  In all
    other respects, I would dismiss the conviction appeal.  In these circumstances,
    I do not reach the appellants sentence appeal on the sexual assault conviction. 
    I would dismiss the appellants sentence appeal in respect of his remaining
    convictions.

II.       Background Facts

[11]

At
    trial, there was no dispute that the appellant had sexual intercourse with each
    of the complainants at various times between August 2008 and August 2009. 
    There was also no dispute that the appellant knew that he was HIVpositive during
    this time period.  It was also common ground that, at the time of his sexual
    encounters with N.S. and M.F., the appellant was subject to two separate
    probation orders requiring him to keep the peace and be of good behaviour.

[12]

The
    Crown called no evidence regarding the appellants level of risk of HIV
    transmission, although it filed medical affidavits establishing the appellants
    HIVpositive status.  Each of the complainants testified that the appellant did
    not disclose to them that he was HIVpositive prior to sexual relations.  With
    the exception of one instance with M.F., they also said that no condom was used
    on any occasion when they had sexual intercourse with the appellant.

[13]

The
    appellant was the only defence witness.  He testified that he was never put on
    any medication for his HIV and that he had been informed that his viral loads
    were low.  He said that he had disclosed his HIVpositive status to each of the
    complainants prior to engaging in consensual sexual intercourse with them.  He
    also claimed that he used a condom each time he had sexual intercourse with the
    complainants.

[14]

As
    I will elaborate later in these reasons, the trial judge rejected the
    appellants evidence with respect to N.S. and M.F., concluding that it was
    replete with inconsistencies and fanciful answers and appeared as if it had
    been made up with no regard for the truth.

(1)

Allegation Regarding N.S.

[15]

N.S.,
    a transgender young woman, first came into contact with the appellant in 2005
    on an Internet dating site.  N.S. was then 16 years of age.

[16]

Over
    the next several years, N.S. and the appellant communicated from time to time
    on Facebook.  They eventually agreed to meet in person.  As a result, on August
    23, 2009, the appellant picked N.S. up with his vehicle and she accompanied him
    to his apartment.  They spent the evening together watching television.  Since
    the appellant had been drinking alcohol, they decided that he should not drive
    and that N.S. should stay the night.

[17]

N.S.
    remained overnight in the appellants apartment, sleeping with him in the same
    bed.  N.S. testified that once in bed together, the appellant began to make
    sexual advances towards her.  Despite initial reluctance, N.S. eventually
    masturbated the appellant and performed oral sex on him.  The couple then
    engaged in anal intercourse.  The appellant was the insertive partner, while
    N.S. was the receptive partner.  According to N.S., the anal sex lasted for
    about 15 minutes, whereupon the appellant pulled out and ejaculated on N.S.s
    torso area.

[18]

N.S.
    testified that the appellant did not disclose his HIVpositive status prior to
    engaging in sexual activity with her.  She said that although condoms were
    visible and readily available in the appellants apartment, the couple did not
    discuss using a condom and a condom was not in fact used when they had
    intercourse.

[19]

The
    next morning, the appellant agreed to drive N.S. home before she went to work. 
    Enroute, the appellants vehicle was pulled over by the police.  When this
    occurred, the appellant asked N.S. not to tell the police that they had engaged
    in sex.  Notwithstanding this direction, when a police officer inquired if she
    and the appellant had engaged in sex, N.S. revealed that they had done so.  The
    police officer then advised N.S. to go to the hospital for testing.

[20]

N.S.
    went to the hospital, was tested for HIV, and undertook a 30day  cycle of antiviral
    medication to reduce the chances of developing HIV.  Eventually, after repeated
    testing, N.S. learned that she had not contracted HIV.

[21]

The
    appellant testified that he had disclosed his HIVpositive status to N.S. in
    2006, almost from the outset of their communications.  In his
    examination-in-chief, he maintained that he had used a condom when he engaged
    in anal intercourse with N.S. during their first meeting in August of 2009. 
    However, during cross-examination, he said that he was not sure that he had
    used a condom and that either he or N.S. might have removed the condom before
    he ejaculated.  On the appellants version of events, he pulled out within
    minutes of the intercourse beginning, and began to rest on his back.  N.S. then
    masturbated the appellant, causing him to ejaculate over his own stomach.

[22]

The
    trial judge accepted N.S.s version of events and rejected the appellants
    evidence, finding that he did not disclose his HIVpositive status to N.S.
    before they engaged in unprotected anal intercourse.  The trial judge inferred
    from the whole of the evidence that if N.S. had known of the appellants HIV
    status, she would not have engaged in sex with him.  The trial judge convicted
    the appellant of one count of aggravated sexual assault (Count 1) pertaining to
    N.S.

(2)

Allegations Regarding M.F.

[23]

Like
    N.S., M.F. met the appellant on an online dating site, in 2009.  As with N.S.,
    the appellant and M.F. then began to communicate with each other on various
    social media for the next several months.  On May 22, 2009, they met in person
    for the first time at a shopping mall.  M.F. then accompanied the appellant to
    his apartment.  While at the apartment, they watched a movie and then had vaginal
    intercourse.  M.F. testified at trial that the appellant wore a condom and that
    he ejaculated into the condom.

[24]

Over
    the next three months, M.F. and the appellant engaged in vaginal intercourse on
    four more occasions.  According to M.F., the appellant did not use a condom
    during any of these sexual encounters.

[25]

Thus,
    on M.F.s account of events, she and the appellant engaged in sexual intercourse
    a total of five times.  The appellant used a condom only on the first
    occasion.

[26]

M.F.
    testified that at no time did the appellant disclose his HIVpositive status to
    her.  She said that she first learned of the appellants HIVpositive status
    from a television news report in late August 2009, about two weeks after they
    had last had sex.  M.F. stated that she would not have had sex with the
    appellant  with or without condom use  if she had been aware of his HIV
    status.

[27]

In
    his testimony, the appellant claimed that he told M.F. that he was HIVpositive
    on May 22, 2009, the first night that they were together in person, immediately
    before they were about to have sex.  He also said that he used a condom on that
    occasion and during each of their subsequent sexual encounters.

[28]

The
    trial judge accepted M.F.s evidence in its entirety, finding that she was an
    honest and reliable witness.  She rejected the appellants assertions that he
    had disclosed his HIVpositive status to M.F. before they engaged in any sex
    and that their sexual contact from June 2009 to August 2009 had involved condom
    use.

[29]

In
    respect of M.F.s first sexual encounter with the appellant, when M.F. herself
    said that a condom was used, the Crown conceded at trial that the charge of
    aggravated sexual assault could not be proven to the requisite criminal standard
    of proof.  The trial judge agreed, but accepted the Crowns submission that the
    lesser offence of sexual assault had been made out.  In respect of this incident,
    the trial judge held, at para. 72, that the appellants lack of disclosure
    that he was HIVpositive vitiated any consent that was obtained on this
    occasion.

[30]

In
    the result, the trial judge found the appellant guilty of one count of sexual
    assault (Count 4) and four counts of aggravated sexual assault relating to M.F.
    (Counts 5, 6, 7 and 8).  Since the appellant was admittedly bound by two
    separate probation orders at the time of the offences, he was also convicted of
    breaching those orders (Counts 2 and 3).

III.      The Decisions in
Mabior
and
D.C.

[31]

In
    the seminal case of
Cuerrier
,
supra
, the Supreme Court held,
    at para. 124, that concealment of or the failure to disclose ones HIVpositive
    status to a sexual partner may constitute fraud vitiating consent to sexual
    intercourse.  The court emphasized that proof of the essential elements of
    fraud, (1) dishonesty and (2) deprivation or risk of deprivation, is required
    for the Crown to establish that consent to sexual relations was displaced by
    fraud.

[32]

Writing
    for a majority of the Supreme Court in
Cuerrier
, Cory J. held, at
    para. 126, that the first requirement of fraud (the dishonest act) may consist
    of either deliberate deceit respecting HIV status or non-disclosure of that
    status.  As for the second requirement of fraud (deprivation or risk of
    deprivation), Cory J. stated, at para. 128, that the Crown will have to
    establish that the dishonest act (either falsehoods or failure to disclose) had
    the effect of exposing the person consenting to a
significant risk of
    serious bodily harm
 (emphasis added).

[33]

As
    I have said, in
Mabior
, the Supreme Court revisited and clarified the
Cuerrier
significant risk test for establishing fraud vitiating consent to sexual
    relations.  As relevant to this appeal, the
Mabior
court made the
    following five key findings:

(1)

since HIV
    poses a risk of serious bodily harm, the operative offence for failure to
    inform a sexual partner of ones HIV status is aggravated sexual assault (at
    para. 2);

(2)

the
Cuerrier
approach to consent, namely, a significant risk of serious bodily harm,
    remains valid and accords the concept of consent meaningful scope (at para.
    58);

(3)

a
    significant risk of serious bodily harm is established within the meaning of
Cuerrier
where there is a 
realistic possibility of transmission of HIV
 such
    that the deprivation element of the
Cuerrier
test is met (emphasis
    in original) (at para. 84);

(4)

where a
    realistic possibility of transmission of HIV exists, disclosure of HIV status
    prior to sexual relations is required.  Conversely, if no such realistic
    possibility exists, the failure to disclose ones HIVpositive status will not
    constitute fraud vitiating consent to sexual relations (at para. 91); and

(5)

as a
    general matter, a realistic possibility of transmission of HIV is negated if
    (i) the accuseds viral load at the time of the sexual relations was low,
and
(ii) condom protection was used (emphasis in original) (at para. 94).

[34]

Thus,
    under
Mabior
, and contrary to what many trial and provincial appellate
    courts in Canada had previously held in applying
Cuerrier
, proof of
    both a low viral load and condom use is required to negate a
prima facie
case of aggravated sexual assault for failure to disclose ones HIVpositive status
    prior to sexual relations.  This controlling principle was applied by the
    Supreme Court in the companion case of
D.C.
, released with
Mabior
.

[35]

In
    a passage that is key to the issues raised on the appellants conviction
    appeal, the Supreme Court also said in
Mabior
, at para. 105:

The usual rules of evidence and proof apply.  The Crown bears
    the burden of establishing the elements of the offence  a dishonest act and
    deprivation  beyond a reasonable doubt.  Where the Crown has made a
prima
    facie
case of deception and deprivation as described in these reasons, a
    tactical burden may fall on the accused to raise a reasonable doubt, by calling
    evidence that he had a low viral load at the time and that condom protection
    was used.

I will return to this passage from
Mabior
in
    my discussion of the issues raised on appeal.

IV.     Issues

[36]

There
    are three issues on the conviction appeal:

(1)

Are the
    five verdicts of aggravated sexual assault in respect of N.S. and M.F.
    unreasonable?

(2)

Is the
    verdict of sexual assault in relation to M.F. also unreasonable?

(3)

Are the
    verdicts of breach of probation similarly unreasonable?

[37]

The
    appellant raises one issue on his sentence appeal: Is the global sentence
    imposed harsh and excessive in the circumstances of this case?

V.      Analysis

A.      Conviction Appeal

(1)

Aggravated Sexual Assault Convictions

[38]

The
    appellant argues that the aggravated sexual assault convictions are
    unreasonable because the Crown failed to establish a
prima facie
case
    of a realistic possibility of HIV transmission within the meaning of
Mabior
. 
    The appellants argument proceeds in the following fashion.

[39]

First,
    the appellant submits that there was no evidence at trial relating to the risk
    of HIV transmission, either generally or specifically, in relation to the
    alleged sexual acts at issue in this case.  In the absence of such evidence,
    the appellant says, the Crown failed to lead any case that required a response
    on the part of the defence.

[40]

Next,
    the appellant contends that the trial judge proceeded from a finding of
    unprotected sex when the appellant was HIVpositive to a finding that, in
    effect, concludes that unprotected sex with a person who is HIVpositive itself
    raises a realistic possibility of HIV transmission, such that the requirement
    of deprivation or risk of deprivation is made out.  This conclusion, the
    appellant says, runs contrary to the Supreme Courts holdings in
Mabior
.

[41]

I
    would reject these arguments on the facts of this case for the following
    reasons.

[42]

It
    is true that where aggravated sexual assault is alleged in an HIV
    non-disclosure case, the Crown bears the burden of proving that fraud vitiated
    the complainants consent to sexual relations.  The Supreme Court said as much
    in
Mabior
, at para. 105, quoted above.  To discharge this burden, the
    Crown is obliged to prove the essential elements of a dishonest act and
    deprivation (or risk of deprivation), beyond a reasonable doubt.  Only then may
    a tactical burden fall on the accused to raise a reasonable doubt, by calling
    evidence that he had a low viral load at the time and that condom protection
    was used:
Mabior
, at para. 105.

[43]

On
    the trial judges uncontested factual findings in this case, there is no doubt
    that the Crown met its burden to establish a dishonest act.  The trial judge
    found that the appellant did not disclose to N.S. that he was HIVpositive before
    he had anal sex with her.  Similarly, the trial judge found that the appellant did
    not disclose his HIVpositive status to M.F. before having sexual intercourse
    with her on the four occasions during June to August 2009.  As Cory J. observed
    in
Cuerrier
, at para. 126, the requisite dishonest act consists of
    either deliberate deceit respecting HIV status or non-disclosure of that
    status.

[44]

Mabior
clarifies, however, that sexual intercourse with an HIVpositive person
    poses a significant risk of serious bodily harm only where there is a
    realistic possibility of transmission of HIV.  As I have said, in the absence
    of such a realistic possibility, the deprivation element of the
Cuerrier
test is not met: see
Mabior
, at paras. 84 and 91.

[45]

In
    this case, the appellant essentially contends that since there was no medical
    or expert evidence regarding the degree of risk of HIV transmission posed by
    the appellants specific sexual acts with N.S. and M.F., the Crown failed to
    establish that the acts engaged in by the appellant gave rise to a realistic
    possibility of transmission of HIV.

[46]

I
    disagree.  In my opinion, this contention founders on the trial judges
    unchallenged factual findings.  The trial judge found that the appellant did
    not use a condom on the one occasion when he engaged in anal intercourse with
    N.S.  The trial judge similarly found that the appellant did not wear a condom
    on the four relevant occasions when he had vaginal intercourse with M.F.  These
    findings were amply supported by the evidentiary record.  They are not
    challenged on appeal.

[47]

Thus,
    on the evidence accepted by the trial judge, the Crown established that the appellant
    was HIVpositive, that he failed to disclose his HIVpositive status to N.S.
    prior to anal intercourse and to M.F. prior to vaginal intercourse, and that he
    failed to use a condom on any of the occasions in question.

[48]

In
    these circumstances, the issues of the appellants exact viral load at the time
    of his sexual encounters with N.S. and M.F., and the degree of risk of HIV
    transmission posed as a result of his viral load, are simply irrelevant.  The
    nature of the appellants viral load at the times in question cannot change the
    fact that, on the trial judges findings, the appellant was HIVpositive at the
    time of intercourse and he failed to use a condom.

[49]

The
    Supreme Court made this pivotal finding in
Mabior
, at para. 94:

[A]s a general matter, a realistic possibility of transmission
    of HIV is negated if (i) the accuseds viral load at the time of sexual
    relations is low,
and
(ii) condom protection was used.  [Emphasis in
    original.]

[50]

Here,
    the appellant failed to use a condom when engaging in anal and vaginal
    intercourse at times when he was HIVpositive.  On the
Mabior
standard, therefore, a realistic possibility of transmission of HIV was not
    negated, regardless of whether the appellants viral load was low when he
    engaged in sexual activity with N.S. and M.F.

[51]

The
    appellant argues that the above-quoted pivotal holding in
Mabior
was
    based on evidence in that case establishing a baseline risk of HIV transmission
    arising from vaginal intercourse.  Similarly, the appellant says, there was an
    evidentiary basis in
D.C.
for a finding of a realistic possibility of
    HIV transmission, where the accused female engaged in unprotected vaginal
    intercourse with the male complainant.

[52]

In
    contrast, in this case, there was no evidence of the degree of risk of HIV
    transmission posed by the appellants unprotected anal intercourse with N.S.
    and his unprotected vaginal intercourse with M.F.  Thus, the appellant submits,
    the Crown failed to establish a
prima facie
case of deprivation or
    risk of deprivation, namely, a realistic possibility of HIV transmission.

[53]

In
    my view, this argument is unsustainable.  On the appellants 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 HIVpositive partner.  Rather,
Mabior
holds that
    a realistic possibility of transmission of HIV is negated by evidence that
    condom protection was used and the accuseds viral load was low at the time of
    intercourse: see
Mabior
at para. 104.

[54]

This
    standard, in my view, allows for the Crown to establish a realistic possibility
    of HIV transmission in various ways.  On my reading of
Mabior
, proof
    of the fact of unprotected intercourse with an HIVpositive person is one of
    those ways.  This is consistent with
Cuerrier
, in which Cory J., for
    the majority, observed at para. 128: The risk of contracting AIDS as a result
    of engaging in unprotected intercourse would clearly meet [the test of a
    significant risk of serious bodily harm].
Mabior
clarifies what is
    required in order to negate the risk of HIV transmission from unprotected
    intercourse.  However, it does nothing to suggest that Cory J.s quoted observation
    is no longer valid.

[55]

I
    find support for this conclusion in McLachlin C.J.s rejection in
Mabior
of the suggestion that a significant risk of serious bodily harm must be
    established by medical evidence in each case.  The respondent argued in
Mabior
that to establish whether a particular sexual act posed a significant risk of
    transmitting HIV would typically require the Crown to call expert evidence as
    to the accuseds viral count at the time of the offence as well as risks
    associated with any condom protection used:
Mabior
, at para. 68.

[56]

Chief
    Justice McLachlin rejected this suggestion, holding, at para. 69, that this
    case-by-case factbased approach would not remedy the problems of uncertainty
    and reach that make
Cuerrier
difficult to apply.  To the contrary, it would
    lead to an onerous, medical evidencebased process with attendant lengthy
    proceedings, and enormous costs both for the prosecution and the defence, among
    other matters.  The evolving common law approach to the significant risk test
    adopted in
Mabior
expressly seeks to avoid these difficulties by
    recognizing that medical or expert evidence will not be required in every case
    in order for the Crown to establish a realistic possibility of HIV
    transmission.  It also allows the common law to adapt to future advances in
    medical treatment for HIV and to circumstances of shifting risk factors for
    transmittal of the disease: see
Mabior
, at para. 95.

[57]

It
    follows, in my opinion, that once it was established in this case that: (1) the
    appellant was HIVpositive; (2) the appellant did not disclose his HIVpositive
    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 HIVpositive
    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.

[58]

I
    therefore conclude that the appellants appeal from his aggravated sexual
    assault convictions should be dismissed.

(2)

Sexual
    Assault Conviction

[59]

The trial judge acquitted the appellant of aggravated sexual assault
    regarding the incident of vaginal intercourse between the appellant and M.F.
    that occurred on May 22, 2009.  He did so based on both M.F.s and the
    appellants evidence that condom protection was used and the appellant
    ejaculated into the condom.

[60]

However,
    the trial judge convicted the appellant of the lesser offence of sexual assault
    on the basis that the appellants lack of disclosure of his HIVpositive status
    to M.F. on this occasion vitiated her consent to intercourse.  The Crown
    concedes that on the
Mabior
standard, this sexual assault conviction
    cannot stand.

[61]

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
    judges basis for conviction effectively eliminates the deprivation element of
    fraud and fails to recognize that disclosure of HIVpositive status is not
    always required, as a matter of law.  Only where there is a realistic possibility
    of HIV transmission is disclosure of HIVpositive status obligatory: see
Mabior
,
    at paras. 66, 67 and 91.

[62]

That
    said, I do not accept the appellants claim that the sexual assault verdict was
    unreasonable.  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 accuseds viral load at the time of sexual relations was low
and
that condom protection was used.  In this case, neither the Crown nor the
    defence led any evidence of the appellants viral load at the time of the May
    2009 incident of intercourse.  Depending on evidence of the appellants viral
    load at the time in question, the appellant could be convicted of aggravated
    sexual assault at a new trial.

[63]

The
    Crown readily acknowledges that it did not appeal the appellants acquittal of
    the charge of aggravated sexual assault in relation to this incident.  As a
    result, the Crown submits that a new trial is required on the lesser and
    included charge of sexual assault relating to the May 2009 sexual encounter
    between the appellant and M.F.  I agree.

(3)

Breach of
    Probation Convictions

[64]

The
    appellants appeal of his breach of probation convictions rests on his success
    in appealing his convictions for aggravated sexual assault.  As I would dismiss
    the appeal in respect of the latter convictions, it follows that I see no basis
    for appellate interference with the breach of probation convictions.

(4)

Disposition
    of Conviction Appeal

[65]

Accordingly,
    for the reasons given, I would allow the appellants appeal from his sexual
    assault conviction and direct a new trial on the charge of sexual assault in
    relation to the May 22, 2009 incident involving M.F.  In all other respects, I
    would dismiss the conviction appeal.

B.      Sentence Appeal

[66]

The
    appellant acknowledges that his global sentence of five years imprisonment,
    less two and one-half years credit for pre-sentence custody, is within the
    appropriate range.

[67]

However,
    relying on the decision of this court in
R. v. McGregor
, 2008 ONCA
    831, 94 O.R. (3d) 500, the appellant argues that the global sentence imposed
    was harsh and excessive in all the circumstances.  He submits that 18 months
    imprisonment would have been a fit sentence for his first aggravated sexual assault
    conviction, while 18 months imprisonment for his remaining convictions was
    appropriate.  This would result in a total sentence of 3 years imprisonment,
    less credit for pre-sentence custody.  In the result, the appellant contends that
    a sentence of time served should be imposed by this court.

[68]

I
    would reject the proposition that a lengthy term of imprisonment, reflected by the
    appellants global sentence of five years imprisonment, is unfit for this
    offender in the circumstances of this case.

[69]

The
    appellants offences were very serious.  They endangered the lives of both N.S.
    and M.F. and, based on the evidence at trial, led to devastating trauma for the
    complainants, both of whom were still relatively young women at the time of the
    offences,
[3]
with most of their lives still ahead of them.

[70]

As
    the trial judge emphasized, the appellant deliberately disregarded warnings
    from health care professionals of the need to disclose his HIVpositive status
    to his sexual partners.  Instead, on the trial judges findings, the appellant knowingly
    participated in unprotected sexual intercourse with both complainants without
    revealing his HIV status and manipulated both women for his own sexual
    gratification.

[71]

The
    appellants 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.  As Binnie J. aptly observed
    in
R. v. Williams
, 2003 SCC 41, [2003] 2 S.C.R. 134, at para. 19, [t]he
    exposure of an unwitting sexual partner to the risk of HIV infection, through
    deliberate deception, is the stuff of nightmares.  The appellants multiple
    convictions for aggravated sexual assault, as well as breaches of probation,
    called out for a lengthy term of imprisonment.

[72]

The
    appellants reliance on
McGregor
, in aid of his argument that his
    sentence should be significantly reduced, is misplaced.
McGregor
is
    readily distinguishable from this case.

[73]

In
McGregor
, the accused was convicted of one count of aggravated sexual
    assault arising from two instances of unprotected sexual intercourse with one
    complainant  his girlfriend  over the course of approximately an 18month relationship. 
    On most of the many instances of sexual intercourse between the couple, the
    accused was careful to use a condom.  He failed to do so on only two occasions,
    giving rise to the conviction in question.  In those circumstances, this court set
    aside the conditional sentence imposed at trial and substituted a sentence of
    one-year of imprisonment, after six months credit for pre-sentence custody and
    time served under the conditional sentence, plus three years probation.  As is
    evident, the facts of
McGregor
are a far cry from those of this case.

[74]

On
    my proposed disposition of this case, the appellants convictions for
    aggravated sexual assault and breaches of probation remain intact.  The global
    sentence of five years imprisonment, less two and one-half years credit for
    pre-sentence custody, is a fit sentence for those offences in the
    circumstances.  Since the sentence imposed by the trial judge on the sexual
    assault conviction was two years imprisonment, concurrent, the appellants
    success on appeal from  this conviction has no effect on the overall global
    sentence imposed by the trial judge.  Finally, as I would allow the conviction
    appeal on the appellants sexual assault conviction and direct a new trial on
    that charge, I do not reach the sentence appeal in respect of that conviction.

VI.     Disposition

[75]

For
    the reasons given, I would allow the conviction appeal in respect of the
    appellants sexual assault conviction and order a new trial on that charge.  In
    all other respects, I would dismiss the conviction appeal.  I would also
    dismiss the appellants sentence appeal.

Released:

JUN 21 2013                                    E.A.
    Cronk J.A.

EAC                                                I
    agree Gloria Epstein J.A.

I
    agree P. Lauwers J.A.





[1]
This appeal was heard together with companion appeals in
R. v. Mekonnen
,
    2013 ONCA 414.  This courts reasons in
Mekonnen
are being released
    contemporaneously with these reasons.



[2]
The trial judge acquitted the appellant of the charge regarding D.H. due to
    concerns about her credibility and reliability.



[3]
Both women were in their early 20s.


