



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), (2.1), (2.2), (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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, 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);
    2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s.
    18..

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. N.G., 2020 ONCA 494

DATE: 20200805

DOCKET: C66296

Lauwers, Trotter and Fairburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

N.G.

Appellant

Wayne A. Cunningham, for the
    appellant

Grace Choi, for the respondent

Richard Elliott and Ryan Peck,
    for the interveners, the HIV Legal Network, HIV & AIDS Legal Clinic Ontario
    and Coalition des organismes communautaires québécois de lutte contre le SIDA

Heard: February 12, 2020

On appeal from the conviction entered on
    November 15, 2017 by Justice Edward E. Gareau of the Superior Court of Justice.

Fairburn J.A.:

OVERVIEW

[1]

Over a period of many months, after being
    diagnosed with HIV and warned about the need to disclose his HIV status to
    sexual partners, the appellant engaged in repeated acts of vaginal sexual
    intercourse with three different women. The appellant wore condoms but did not
    disclose his HIV-positive status and was not on antiretroviral medication. The complainants
    testified that they would not have consented to having sexual intercourse with
    the appellant had they been aware of his HIV-positive status.

[2]

The appellant was charged with multiple
    offences, including three counts of aggravated sexual assault. The trial
    focused on whether the appellants failure to disclose his HIV status to the
    complainants, prior to sexual intercourse, constituted fraud vitiating their
    consent to that sexual activity in accordance with the principles laid down in
R.
    v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584.  Although one of the complainants
    was diagnosed with HIV after her sexual relationship with the appellant, there
    was no proof that she contracted the virus from him.

[3]

Mabior

holds that an accused may be found guilty of aggravated sexual
    assault under s. 273(1) of the
Criminal Code
, R.S.C. 1985, c. C-46,

if he or she fails to disclose an HIV-positive status to a sexual partner,
    consent to the sexual activity would not have been given had the sexual partner
    known about that status,
and
there exists a realistic possibility of transmission
    of HIV during that sexual activity:
Mabior
, at para. 4. The unanimous
    court in
Mabior
determined that a realistic possibility of HIV transmission
    is negated where two factors come together and work in combination: (a) the
    non-disclosing persons viral load (the quantity of HIV circulating in his or
    her blood) at the time of sexual relations is low;
and
(b) a condom is
    used during the sexual activity in question:
Mabior
, at paras. 94, 103-4.
[1]

[4]

While the trial judge found as a fact that the appellant
    used a condom during every act of vaginal sexual intercourse, it is
    indisputable that the appellant did not have a low viral load during a number
    of those acts of intercourse.

[5]

Unable to argue that he met the two-prong test
    for negating the realistic possibility of transmission of HIV, the appellant
    instead argued that the
Mabior
test should be changed to reflect the
    fact that condom use alone is sufficient to negate the realistic possibility of
    transmission. The trial judge rejected the call to adapt the
Mabior
test and found the appellant guilty on all three counts of aggravated sexual
    assault.

[6]

The appellant then brought a reopening
    application, at which he sought to introduce expert evidence that use of a
    condom alone negated any realistic possibility of transmission. The trial judge
    heard and dismissed the application to reopen the trial. Convictions were
    entered and the appellant was sentenced to 42 months in custody.

[7]

In this court, the appellant renews his argument
    and seeks to buttress it with fresh evidence. For the reasons that follow, I
    would dismiss the appeal.

[8]

While there is much to be said for the fact that
    there have been significant medical and scientific strides in our understanding
    of HIV transmission and treatment in recent years, strides that may well inform
    the proper direction of the criminal law in the future, I do not accept that
    the
Mabior

judgment rests on a flawed understanding of the
    effectiveness of condoms at preventing HIV transmission. The appellants dispute
    with
Mabior

rests on the central legal underpinnings of that
    decision. As I will explain, the reasons for those underpinnings were carefully
    explained by the unanimous court in
Mabior

and it is not for
    this court to upend them.

BACKGROUND FACTS

I.

The Sexual Activity with A.G.

[9]

The appellant and A.G. met on a dating website.
    She estimated that they had vaginal intercourse 10 to 12 times between
    September 2013 and October 2014. That activity took place in public parks,
    behind a school, in the back seats of motor vehicles, and once at A.G.s home.

[10]

A.G. testified that she also performed fellatio
    on the appellant about 75 or 80 percent of the time that they also had sexual
    intercourse. He did not use a condom during the fellatio. He sometimes would
    ejaculate in her mouth and she would swallow his semen.

[11]

A.G. testified the appellant always wore a
    condom during the vaginal intercourse. She recalled bringing the condoms and
    thought the appellant may have also brought them sometimes. The appellant would
    put condoms on himself after he had an erection. A.G. could not recall a condom
    breaking.

[12]

When A.G. found out about the appellants
    HIV-positive status, she died a little bit inside. She felt suicidal while
    awaiting test results to determine whether she had contracted the disease. She
    ultimately tested negative. She testified that she would not have consented to
    any sexual activity with the appellant had she known his HIV-positive status.

II.

The Sexual Activity with A.C.

[13]

The appellant also met A.C. through a dating
    website. Their sexual relationship involved mutual oral sex without condoms. It
    also involved vaginal sexual intercourse. That activity took place between July
    2013 and March 2014. Although much of their sexual activity took place at
    A.C.s home, the appellant and A.C. also had intercourse outside in the bushes
    and on the ground. During certain periods of time, they had intercourse a
    couple of times a week.

[14]

A.C. said that the appellant would bring his own
    condoms and put them on.  She said that she could hear the package open and saw
    them being disposed [of] because most times I would give him the Kleenex, hed
    put it in the Kleenex, and I would throw it away. Like A.G., she would not
    have consented to engaging in sexual activity with the appellant had she known
    his HIV status. This was particularly true given that she had her own serious
    health issues at the time.

[15]

Although A.C. tested positive for HIV in October
    2014, there was no finding that she contracted the disease from the appellant.

III.

The Sexual Activity with N.W.

[16]

The appellants brother introduced N.W. to the
    appellant. N.W. testified about numerous incidents of oral sex and at least one
    incident of vaginal intercourse that took place at her home somewhere between
    December 2013 and January 2014. The trial judge found that a condom was used
    during sexual intercourse.

[17]

Like the other complainants, N.W. testified that
    she would not have consented to engaging in any sexual activity with the
    appellant had he disclosed his HIV-positive status to her.

IV.

The Uncontroverted Facts About the Appellants
    Viral Load

[18]

Health authorities informed the appellant about
    his HIV-positive status on October 20, 2013. At that point, his sexual
    relationships with A.G. and A.C. had already started. The appellant was told
    about the risks of transmission, the importance of using condoms, and the need to
    disclose his HIV-positive status to all sexual partners.

[19]

The appellant did not start taking
    antiretroviral medication until April 3, 2014, over five months after diagnosis.
    Despite having been specifically warned about the risk of transmission and need
    for disclosure, the appellant continued in his sexual relationships with A.C.
    and A.G., and started his sexual relationship with N.W., without disclosing to
    any of them.

[20]

Between his initial diagnosis and his first viral
    load reading after beginning antiretroviral drugs, the appellants viral load
    ranged between 11,345 and 27,868 copies of HIV in a millilitre of blood, well
    above the 1,500 copies described as low in
Mabior
. The higher the
    number, the greater the risk of transmission:
Mabior
, at para. 100. By
    October 29, 2014, the appellants viral load had become non-detectable.

[21]

Therefore, there is no dispute in this case that
    the appellant was having vaginal sexual intercourse with the complainants
    during a time when his viral load was not low within the meaning of
Mabior
.
[2]
Accordingly, despite his use
    of condoms, the appellant failed to meet the
Mabior

test for
    negating a realistic possibility of transmission of HIV during those sexual
    acts.

V.

Defence Expert at Trial: Dr. Wendy Wobeser

[22]

The defence called an infectious disease
    specialist, Dr. Wendy Wobeser. She was qualified to give opinion evidence in
    the following areas: (a) biology and treatment of HIV; (b) the risk of
    transmission of HIV; and (c) the general area of infectious diseases.

[23]

Dr. Wobeser testified that HIV is a necessary
    precursor to Acquired Immune Deficiency Syndrome (AIDS). Given the advances
    in science and the availability of antiretroviral medication, today, very few
    people with HIV develop AIDS. Even so, Dr. Wobeser testified that HIV remains a
    serious, life-endangering infection if not treated properly.

[24]

The most significant risk factors for a person
    with HIV transmitting the infection through sexual activity are: (a) whether a
    condom is used; (b) the persons viral load; (c) whether the person is
    undergoing antiretroviral therapy; and (d) the type of sexual activity
    undertaken. She testified that vaginal-penile intercourse is less likely to
    result in transmission of the virus than anal intercourse, with anal
    intercourse being the highest risk sexual activity for transmission.

[25]

Where condoms are used, and everything works,
    Dr. Wobeser testified that the risk of HIV transmission is zero. She referred
    to a study that was cited in
Mabior
with reference to the
    effectiveness of condoms at preventing transmission: Susan C. Weller and Karen
    Davis-Beaty, Condom Effectiveness in Reducing Heterosexual HIV Transmission
    (2002), 1 Cochrane Database Syst. Rev. CD003255 [Cochrane Review]. Relying
    upon the Cochrane Review, she referred to the fact that, in the real world,
    condom use reduces the baseline risk (the actual rate at which something occurs
    in a given population) of HIV transmission by 80 to 85 percent.

PROCEEDINGS BELOW

I.

Reasons for Judgment at Trial

[26]

Relying upon Dr. Wobesers evidence, the trial
    judge accepted as a fact that, where condoms work, the risk of transmission of
    HIV is zero. Even so, he concluded that condoms only provide 80 to 85 percent
    effectiveness in the real world, and probably closer to the 80 percent range.
    As the trial judge said:

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 [preventing the transmission of] 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.

[27]

The trial judge rejected as unpersuasive the
    reasoning in another trial decision where an accused was acquitted of
    aggravated sexual assault on the basis of condom use alone: see
R. v.
    Thompson
, 2016 NSSC 134, 373 N.S.R (2d) 167, revd but not on this point
    2018 NSCA 13, 359 C.C.C. (3d) 222.
[3]
He also felt bound by this courts decisions in
R. v. Felix
,
2013
    ONCA 415, 307 O.A.C. 248 and
R. v. Mekonnen
,
2013 ONCA 414, 299
    C.C.C. (3d) 134, two cases that applied the
Mabior

rule for
    negating the realistic possibility of HIV transmission.

[28]

While the trial judge accepted that a great deal
    has changed in relation to antiretroviral therapy, a subject I will return to
    later, he concluded that when the scientific evidence as a whole is examined
    with respect to condom use in real life situations, nothing had changed since
Mabior
.
    Therefore, he found:

Since there is not the combined effect of a
    low viral load
and
condom use at the time [the appellant] 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 [the appellant] had with A.C., A.G., and N.W. [Emphasis in original.]

[29]

The appellant was found guilty of three counts
    of aggravated sexual assault.

II.

The Reopening Application

[30]

After being found guilty of three counts of
    aggravated sexual assault, the appellant brought an application to reopen the
    trial. In support of that application, the appellant filed the affidavit of Dr.
    John Richard Middleton Smith, the same expert who testified in
Mabior.
Like Dr. Wobeser at trial in this case, during his
    evidence in
Mabior,
Dr.
    Smith relied upon the Cochrane Report to estimate the reduction in the baseline
    risk of HIV transmission when condoms are used.
As the court noted
    in
Mabior
,
at para. 98: Dr. Smith testified that consistent
    condom protection reduces the risk of HIV transmission by 80%, relying on the
    widely accepted Cochrane review.

[31]

On the reopening application at trial, Dr. Smith
    said that his thinking on the risks associated with the sexual transmission of
    HIV where condoms are used has evolved since he testified in
Mabior
. Adopting
    a passage from a consensus statement prepared by Canadian experts in the field
    of HIV, Dr. Smith now emphasizes that 
when correctly used and no breakage
    occurs
, condoms are 100% effective at stopping the transmission of HIV
    (emphasis added): see
Loufty
,
et al.
, Canadian Consensus Statement
    on HIV and its Transmission in the Context of Criminal Law (2014), 25:3 Can J.
    Infect Dis. Med. Bicrobiol. 135 [Canadian Consensus Statement].

[32]

Dr. Smith now underscores that the 80 to 85
    percent effectiveness rate for condoms, as reflected in the Cochrane Review, is
    only applicable at a population level and, in his view, should no longer be
    used for assessing individual risk on a per sex act basis. As he said:

It is simply incorrect to state that
in
    [an] individual case
condoms are only 80-85% effective. In my opinion an
    individual who
always uses a condom and is careful in its use
can be
    almost 100% sure that the HIV virus will not be transmitted.



In my opinion, it is agreed amongst the
    medical profession, that as far as science has been able to determine, condoms
    are near 100% effective in preventing HIV transmission
if correctly used
.
    I say near 100% because of the negligible prospect that even when properly used,
    there may be an unknown problem with the condom that allows transmission of
    bodily fluid. [Emphasis added.]

[33]

In the trial judges view, Dr. Smiths evidence
    added nothing new to the evidence of Dr. Wobeser that, where condoms work
    perfectly, the HIV transmission rate is zero. The trial judge concluded, though,
    that the condom error rate across the population is still an important consideration
    when determining the realistic possibility of transmission of HIV because sexual
    intercourse takes place in the real world where condoms do not always perform
    perfectly. Accordingly, he concluded that Dr. Smiths evidence was
    insufficiently cogent to be granted admission on the reopening application. The
    application was dismissed, and the matter proceeded to sentencing.

ANALYSIS

I.

Overview

[34]

In challenging his convictions, the appellant
    returns to the same argument he made at trial and on the reopening application.
    He contends that the
Mabior

requirement that condom use be
    coupled with a low viral load in order to negate a realistic possibility of
    transmission of HIV overshoots the mark. He says that condom use alone should
    be sufficient to negate the realistic possibility of transmission because
    consistent and correct condom use creates a zero percent chance of
    transmission.

[35]

Although the appellant acknowledges that in rare
    situations condoms will fail, he says that this failure is strictly owing to
    incorrect usage. Therefore, according to the appellant, where a condom is used,
    regardless of the level of the HIV-positive sexual partners viral load, condom
    usage alone should be sufficient to negate the realistic possibility of HIV
    transmission. To displace that presumption, the appellant contends that it
    should fall to the Crown to prove condom failure.

[36]

At the same time, and importantly, the appellant
    is not prepared to acknowledge that the criminal law necessarily has a role to
    play in the wake of condom failure. He argues that all issues surrounding the
    mechanics of such proof, and whether proof of condom failure could even rise to
    the level of criminality, be left to another day. Therefore, I refer to the
    appellants position on this appeal as a condom-alone rule.

[37]

Although they put it slightly differently, the interveners
    join the appellant in the position that correct condom use alone should be
    able to negate the
Mabior
threshold of a realistic possibility of
    transmission. They ask this court to conclude as a matter of law, that:

(i) condom use
per se
can
negate
    a realistic possibility of transmission for the purpose of the criminal law,
    and

(ii) there is no realistic possibility of
    transmission in the case of
correct
condom use (i.e., the integrity of
    the condom is not compromised and the condom is worn throughout the sex act in
    question). [Emphasis in original. Footnote omitted.]

[38]

To be clear, this case is not about advances in
    the understanding around the non-transmissibility of HIV in the context of a
    suppressed or undetectable viral load. In particular, it does not raise the
    question of whether a suppressed or undetectable viral load, standing on its
    own, should now be sufficient to negate the realistic possibility of
    transmission.

[39]

The sole issue that this court is asked to
    resolve in this case is whether, at law,
the use of a condom alone

    despite the presence of a non-low or perhaps even high viral load  should remove
    HIV non-disclosure cases from the reach of the criminal law, barring proof that
    the condom failed in some way. The record before this court addressed that
    issue alone, and the legal argument followed suit.

[40]

The appellant makes two broad arguments in
    support of his position that it is open to this court to set aside the
Mabior

finding that condom use alone does not negate the realistic possibility of
    HIV transmission. He maintains that this court can arrive at a different
    conclusion than
Mabior

on this point because, in determining
    the rate at which condoms fail to protect against the baseline risk of HIV
    transmission, the Supreme Court of Canada (a) relied upon Dr. Smiths approach
    to population-level statistics, an approach that Dr. Smith no longer endorses; and
    (b) relied upon what are in hindsight flawed statistics.

[41]

In support of his argument, the appellant relies
    upon the evidence of Dr. Smith at the reopening application, as well as
    evidence contained within a fresh evidence record on appeal. Together, I will
    refer to all of this evidence as the new evidence.

[42]

The appellant acknowledges that if he is
    unsuccessful in having his fresh evidence admitted on appeal, then it is
    unrealistic to expect that this court will find error with the trial judges
    decision to exclude Dr. Smiths evidence on the reopening application. His position
    on this point is a sensible one, particularly given that the tests for the
    admission of evidence on a reopening application and on appeal align.

[43]

In a judge alone trial, a finding of guilt can
    be vacated prior to the sentence being imposed or other final disposition made,
    but this should only occur in exceptional circumstances and where it is
    clearly called for:
R. v. Lessard
(1976), 30 C.C.C. (2d) 70 (Ont.
    C.A.), at p. 73. Where an application to reopen a trial is predicated on the
    admission of further evidence, the well-known
Palmer
test for the
    admission of fresh evidence on appeal applies:
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775
;
R.
    v. Kippax
, 2011 ONCA 766, 286 O.A.C. 144, at para. 63, leave to appeal
    refused, [2012] S.C.C.A. No. 92.  The
Palmer

criteria are now
    commonly understood as reflected in a three-part test:

Is the evidence admissible under the operative
    rules of evidence?

Is the evidence sufficiently cogent in that it
    could reasonably be expected to have affected the result?

What is the explanation offered for the
    failure to adduce the evidence at trial and should the explanation affect the
    admissibility of the evidence on appeal?

Truscott (Re)
,
2007 ONCA 575, 226 O.A.C. 200, at
    para. 92;
R. v. Reeve
,
2008 ONCA 340, 236 O.A.C. 92, at para.
    66.

[44]

The central question in this appeal is whether
    the trial judge erred when he concluded that Dr. Smiths evidence was
    insufficiently cogent to be granted admission on the reopening application.
[4]
There are three aspects to the
    cogency consideration:

Is the evidence relevant in that it bears upon
    a decisive or potentially decisive issue at trial?

Is the evidence credible in that it is
    reasonably capable of belief?

Is the evidence sufficiently probative that it
    could reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result?

Truscott
, at para. 99.

[45]

The first two cogency requirements are clearly
    met in this case.

[46]

First, the new evidence bears upon a decisive
    issue at trial, being whether the appellants use of condoms negated the
    realistic possibility of transmission of HIV despite his viral load.

[47]

Second, there is no dispute that the new evidence
    is credible. No one suggests otherwise.

[48]

The real question is whether, when considered
    against all of the evidence at trial, the new evidence is sufficiently
    probative to allow this court to change the
Mabior
rule, so that
    condom use alone can negate the realistic possibility of HIV transmission,
    thereby requiring acquittals to be entered. I see no error in the trial judges
    conclusion that Dr. Smiths evidence was insufficiently cogent to be granted
    admission on the reopening application. There is nothing in the fresh evidence
    on appeal that changes my view in that regard.

II.

The
Mabior
Rule for Fraud Vitiating Consent

[49]

In order to understand the appellants position
    about why condom use alone should negate the realistic possibility of
    transmission, it is first necessary to understand how the Supreme Court of
    Canada came to reject that very suggestion in
Mabior
.
I will
    start by reviewing the
Mabior
test and how it came to be. I will then
    address the narrow basis upon which that test can be revisited by lower courts,
    after which I will explain why, in my view, the appellants arguments for
    adapting the test must fail.


1.

From
Cuerrier
to
Mabior

[50]

A range of criminal offences have been used to
    prosecute HIV non-disclosure cases in Canada, such as criminal negligence
    causing bodily harm, common nuisance, administering a noxious substance,
    attempted murder, murder, and various degrees of assault and sexual assault.
[5]
A report prepared by the
    Department of Justice suggests that aggravated sexual assault is the most
    frequently prosecuted offence in this context: Canada, Department of Justice,
Criminal
    Justice Systems Response to Non-Disclosure of HIV
(2017), at p. 15
    [Department of Justice Report].

[51]

This case,
Mabior
,

and
Mabior
s
predecessor,
R. v. Cuerrier
,
[1998] 2 S.C.R. 371,

are
    all cases involving convictions for aggravated sexual assault. The reasons must
    be considered within that offence-based context. Therefore, to understand the
Mabior

rule that lies at the centre of this appeal, it is necessary to first
    understand how consent operates in the context of sexual assault prosecutions
    involving HIV non-disclosure.

[52]

Consent to sexual activity constitutes the
    voluntary agreement to engage in the sexual activity in question:
Criminal
    Code
, s. 273.1(1). Consent must be freely given, constituting the
    conscious agreement of the complainant to engage in every sexual act in a
    particular encounter:
R. v. J.A.
, 2011 SCC 28, [2011] 2 S.C.R. 440,
    at para. 31.

[53]

Consent as defined in s. 273.1(1) of the
Criminal
    Code

is not to be considered in the abstract:
R. v. Barton
,
2019 SCC 33, at para. 88. Rather, as set out in
R. v. Hutchinson
,
2014 SCC 19, [2014] 1 S.C.R. 346, at paras. 55, 57, and recently reinforced
    in
Barton
,
at para. 88, consent is linked to the sexual
    activity in question, which encompasses the specific physical sex act, the
    sexual nature of the activity, and the identity of the partner. It does not,
    though, include the conditions or qualities of the physical act, such as  the
    presence of sexually transmitted diseases. See also:
R. v. Kirkpatrick
,
2020 BCCA 136, at para. 89,
per
Bennett J.A. (majority).

[54]

Even where the requirements of s. 273.1(1) are
    met  the complainant has agreed to the specific physical sex act, the sexual
    nature of the act, and the identity of the sexual partner  this does not end
    the inquiry into whether consent has been given. This is where ss. 265(3) and
    273.1(2) of the
Criminal Code
come into play, setting out the
    circumstances where consent is deemed not to have been given:
R. v.
    Ewanchuk
, [1999] 1 S.C.R. 330, at para. 36.

[55]

As first addressed in
Cuerrier
, HIV
    non-disclosure cases prosecuted as aggravated sexual assault engage directly
    with s. 265(3)(c) of the
Criminal Code
, dealing with fraud capable of
    vitiating consent:

For the purposes of this section, no consent
    is obtained where the complainant submits or does not resist by reason of



(c) fraud.

[56]

Seven judges sat in
Cuerrier
and three
    judgments emerged. Cory J. held the plurality. His decision set the course for
    how the fraud component in s. 265(3)(c) operates to vitiate consent where
    certain criteria are present in HIV non-disclosure cases. Like
Mabior

and this case,
Cuerrier

also involved HIV non-disclosure in
    the context of acts of vaginal-penile sexual intercourse.

[57]

Expressing concern over casting the criminal net
    too widely, Cory J. determined that HIV non-disclosure could only constitute
    fraud capable of vitiating consent if two things were proven: (a) a deception;
and
(b) a deprivation
or risk of deprivation
.

[58]

The deception component of s. 265(3)(c) can be
    proven through either an active lie about ones HIV status, or silence as to
    that status:
Cuerrier
, at para. 126.

[59]

The deprivation component can be proven through
    actual harm (the actual transmission of the virus) or through a risk of
    deprivation (a risk of transmission of the virus). A risk of deprivation
    means that the complainant did not contract HIV through the sexual activity in
    question but was placed at risk of contracting the disease during that
    activity. It is the risk of deprivation component of the element of fraud
    under s. 265(3)(c) that has attracted substantial attention in the context of HIV
    non-disclosure cases.

[60]

Where the prosecution is relying upon only a risk
    of deprivation to vitiate consent (as in
Cuerrier
,
Mabior
,

and this case), according to
Cuerrier,
the risk must rise to the
    level of a significant risk of serious bodily harm: at paras. 128, 135. See
    also:
Hutchinson
, at para. 34.

[61]

In time, that test proved somewhat elusive and
    difficult to apply, resulting in concerns regarding the inconsistent application
    of the test and the overbroad application of the criminal law:
Mabior
,
    at paras. 13-15. These concerns eventually resulted in two different appellate
    courts specifically asking the Supreme Court of Canada for clarification on the
    test:
R. v. Mabior
, 2010 MBCA 93, 245 Man. R. (2d) 81, at para. 152;
R.
    v. D.C.
, 2010 QCCA 2289, 270 C.C.C. (3d) 50, at para. 121.

[62]

The Supreme Court answered that call in
Mabior
.
[6]


[63]

The parties and interveners in
Mabior

advanced various models for solving the perceived difficulties arising from
    the
Cuerrier

test
.
Each model was rejected by the court,
    including the suggestion by Mr. Mabior that judicial notice be taken of the
    fact that condom use always negates a significant risk of serious bodily
    harm:
Mabior
,
at para. 70.

[64]

Ultimately, the Supreme Court refused to jettison
    the
Cuerrier

test. Instead, the court opted to clarify the
    meaning of that test for purposes of finding a sufficient risk of deprivation
    to vitiate consent in the context of HIV non-disclosure. The court concluded
    that a significant risk of serious bodily harm is established where there
    exists a 
realistic possibility of transmission of HIV
:
Mabior
,
at paras. 4, 84, 91, 93, 104, 108. In other words, where a person fails to disclose
    his or her HIV-positive status before engaging in sexual intercourse, in
    circumstances where there exists a realistic possibility of HIV transmission, a
    deception and risk of deprivation will align such that fraud will be capable of
    vitiating the unwitting sexual partners consent.

[65]

In an effort to provide even further clarity in
    the law, the
Mabior
court went on to explain, at para. 94, that where
    two factors come together to form a symbiotic relationship, the realistic
    possibility of HIV transmission will be
negated
:

This leaves the question of when there is a
    realistic possibility of transmission of HIV. The evidence adduced here
    satisfies me that, as a general matter, a
realistic possibility of
    transmission of HIV is negated if (i) the accuseds viral load at the time of
    sexual relations was low
and
(ii) condom protection was used
[Italics in original, underline added.]

[66]

In other words,
Mabior

made
    clear that if a persons viral load is low during sexual relations
and
a condom is used during those relations, the realistic possibility of HIV
    transmission will be
negated
. Therefore, as a matter of criminal law,
Mabior

clarified that where these two things align, there will be no realistic
    possibility of HIV transmission, thereby removing the risk of deprivation
    necessary for consent to be vitiated under s. 265(3)(c) of the
Criminal
    Code
.

[67]

While the
Mabior

decision places
    the burden on the Crown to establish the dishonest act and risk of deprivation
    beyond a reasonable doubt, the court made the practical observation, at para.
    105, that where the Crown establishes a
prima facie

case of
    deception and deprivation, a tactical burden may shift to the accused to
    trigger the two-part test:

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.
[Emphasis added.]

[68]

The application of the test to the facts of
Mabior

assists in understanding how it is intended to operate. The court allowed
    the appeal insofar as the decision of the Court of Appeal had conflicted with the
    test. This led to the reinstatement of convictions where, despite Mr. Mabiors low
    viral load, he did not use a condom during vaginal sexual intercourse:
Mabior
,
    at paras. 108-9. See also this courts application of this test for negating a
    realistic possibility of HIV transmission in
Felix
.

[69]

Having completed this review of the
Mabior

rule that is under challenge in this appeal, and before moving on, it is
    perhaps worth emphasizing the crux of HIV non-disclosure cases prosecuted as
    aggravated sexual assaults. The essence of the crime lies in the failure to
    disclose ones HIV-positive status to an unwitting sexual partner in
    circumstances where there exists a realistic possibility of transmission of the
    virus to that unwitting partner. In my view, what is criminalized is the unilateral
    imposition of risk of very serious harm onto another person without offering
    the at-risk party an opportunity to decide whether to assume that risk, or how
    to manage that risk, before making a decision to proceed.


2.

The Importance of
Stare Decisis

[70]

The principle of
stare decisis
casts a
    long shadow in this case and, as I will explain, governs the result.

[71]

There are sound reasons for why, except in
    limited circumstances, lower courts do not depart from precedents of higher
    courts. At the forefront of those reasons is the need for certainty in the law.
    As noted in
Canada (Attorney General) v. Bedford
,

2013 SCC 72, [2013] 3 S.C.R.
    1101, at para. 38:

Certainty in the law requires that courts
    follow and apply authoritative precedents. Indeed, this is the foundational
    principle upon which the common law relies.

[72]

Despite the importance of certainty in the law,
    and the need to follow precedent in order to achieve that certainty, where the
    factual underpinnings guiding a legal decision give way, so too may the
    principle of
stare decisis.
Indeed, the
Mabior

decision
    makes specific note of this fact.

[73]

Mabior

is clear that the means by which a realistic possibility of HIV transmission
    can be negated  condom use combined with a low viral load  represents a
    conclusion that is inextricably linked to the factual record before the court: see,
    for instance, paras. 94, 95, 101, 103, 109. The decision is also clear that the
    court was alive to the fact that this approach to negating risk is directly linked
    to science and medicine, both disciplines that are inherently dynamic in nature
    and ever on the move toward better health outcomes.

[74]

Recognizing that medical and scientific
    developments may take place in the future, the court extended  twice over  a
    specific invitation to lower courts to, if necessary, adapt the means by which a
    realistic possibility of HIV transmission can be negated:

The general proposition that a low viral load
    combined with condom use negates a realistic possibility of transmission of HIV
    does not preclude the common law from adapting to
future advances in
    treatment and to circumstances where risk factors other than those considered
    in the present case are at play
. [Emphasis added.]

Mabior
,
at para. 104. See also para. 95.

[75]

The appellant argues that the
Mabior

invitation to adapt is this courts gateway to reconsidering the factors
    that must be at play before a realistic possibility of transmission can be
    negated. I do not agree.

[76]

While I accept that the
Mabior

decision
    leaves it open to lower courts to adapt the criteria necessary to negate a realistic
    possibility of HIV transmission, it does so in a way that is consistent with
    the principles of
stare decisis
.
In my view, the invitation to
    adapt is directly linked to future advances in treatment and to circumstances
    where risk factors other than those considered in
Mabior

are
    at play. In other words, the invitation to adapt is linked to potential changes
    to the factual pillars upon which
Mabior

rests, in
    circumstances where those pillars are particularly susceptible to change.

[77]

As I will shortly explain, though, the
    appellants argument in favour of a condom alone rule rests on a challenge, not
    to the factual pillars upon which
Mabior

rests, but to the
    legal foundation upon which the decision rests.

[78]

Although I take no final view on the matter,
    because it extends beyond the scope of this judgment, it is noteworthy that
    since
Mabior
was decided, it is arguable that the factual
    underpinnings of the decision have already changed, although not in relation to
    the effectiveness of condoms. There appears to have been significant changes
    involving the understanding around the ability to transmit HIV with a
    suppressed or undetectable viral load. The record in this case includes
    references to the post-
Mabior

medical and scientific
    communities broad consensus that it is no longer considered possible to
    transmit HIV with a suppressed or undetectable viral load: see
Barre-Sinoussi
    et al.
, Expert Consensus Statement on the Science of HIV in the Context
    of Criminal Law (2018), 21:7 J. Intl AIDS Society e25161, at s. 2.1
    [International Consensus Statement]; Canadian Consensus Statement, at pp. 136-7.

[79]

So widely accepted is that view today that it
    appears some prosecution services across the country have now put policies in
    place directing Crown counsel not to prosecute HIV non-disclosure cases any
    longer in circumstances where the HIV-positive partners viral load is either
    suppressed (a level defined within those policies) or undetectable: see e.g., Federal:
    Office of the Director of Public Prosecution,
Directive
(30 November
    2018) [Federal Prosecution Policy]; Ontario: Ministry of the Attorney General, D.
    33 Sexual Offences Against Adults: Sexually Transmitted Infections and HIV
    Exposure Cases, in
Crown Prosecution Manual

(December 1, 2017);
    British Columbia: Prosecution Service, Sexual Transmission, or Realistic
    Possibility of Transmission, of HIV, in
Crown Counsel Policy Manual

(April 16, 2019).

[80]

Lower courts have also started acknowledging that
    viral loads below a defined level, standing on their own, are sufficient to
    negate the realistic possibility of HIV transmission: see e.g.,
R. v.
    Vatcher
(November 22, 2019), Ottawa, 0411-998-17-51-27 (Ont. C.J.);
R.
    v. J.T.C.
, 2013 NSPC 105, at paras. 55-56, 63, 99-101;
R. v. J.T.C.
,
    2013 NSPC 88, at paras. 14-15, 17, 19-21;
R. v. C.B.
, 2017 ONCJ 545,
    at paras. 87, 90-92, 99;
Thompson
, at paras. 97, 132-134.

[81]

Without weighing in on the matter, as it is not
    before us, the apparent evolution in the medical and scientific communities understandings
    around the transmissibility of HIV in the face of suppressed or undetectable
    viral loads illustrates precisely the kind of evolution the
Mabior

court
    left open for consideration in the future. This is the kind of situation where
stare
    decisis

would not bind lower courts to the
Mabior
rule.

[82]

In my view, the new evidence in this case is not
    of a similar type. Its primary focus is not upon changes to the factual
    backdrop upon which the
Mabior

decision rests. Rather, its
    primary focus is upon desired changes to the legal foundations upon which the
Mabior

decision rests.

III.

The New Evidence Does Not Add Anything New


1.

The New Evidence

[83]

At the reopening application, Dr. Smith
    expressed that he has changed his mind since
Mabior

about the
    appropriateness of using population-level statistics when considering the risk
    of HIV transmission in the context of the criminal law. He reinforced this view
    in his fresh evidence on appeal.

[84]

As reflected in the
Mabior
decision
,
Dr. Smith provided evidence that the baseline risk of HIV transmission per
    act of unprotected vaginal-penile sexual intercourse (no condom and a non-low
    viral load), where the male partner is HIV-positive, varies from study to
    study, but is somewhere between 1 in 2,000 and 1 in 384. The court also
    summarized other evidence, suggesting that the baseline risk of transmission in
    these circumstances ranges from 1 in 1,000 to 1 in 1,250:
Mabior
, at
    para. 97. In this case, Dr. Wobeser referred to this baseline risk of
    transmission as around 8 in 10,000.

[85]

The Supreme Court relied upon the Cochrane
    Review, as put forward by Dr. Smith in
Mabior
, for the proposition
    that consistent condom use can reduce that baseline risk by 80 percent:
Mabior
,
    at para. 98. The court concluded that, despite the reduction in risk of
    transmission provided by condom use, something more was required to
negate
the realistic possibility of transmission:
Mabior
, at para. 99. That
    something more is a low viral load.

[86]

Contrary to his
Mabior

evidence,
    Dr. Smith now eschews the use of the Cochrane Report  predicated on
    population-level statistics  to determine the effectiveness of condoms at
    reducing the risk of HIV transmission. Dr. Smith now opines that: it is
    incorrect to state that in any individual case condoms are only 80% to 85%
    effective  because, in his current view,
correct and consistent condom use
leads to 100 percent protection from transmission when considered on a per act
    basis where nothing goes wrong.

[87]

While Dr. Smith acknowledges that condoms do
    fail from time-to-time, it is his view that the law should only consider what
    happened in each individual case. As he puts it: [o]ne has to find out the
    truth of what occurred and the legal system should not be dealing with cases
    where there [has] not been transmission. He says that, instead, the legal
    system should only function by looking at the outcome of the event, rather
    than the risk going into the event.

[88]

In formulating his opinion, Dr. Smith relies
    upon a number of reports, including the Canadian Consensus Statement, where HIV
    physicians and medical researchers have expressed a similar view. That report
    is aimed at addressing what the authors perceive to be at stake in
individual
criminal cases and does
not extend to HIV transmission at a population
    level
in relation to HIV prevention efforts (emphasis added): at p. 136.

[89]

Within that context, the authors focus upon
    condoms that are used correctly and where no breakage occurs. The authors
    specifically point out that their opinion is based upon the assumption that the
    condom was applied to the penis and worn throughout sex, and that no condom
    breakage occurred: at p. 136.
[7]
Assuming these prerequisites are met, the Canadian Consensus Statement says condoms
    are 100% effective at stopping the transmission of HIV: at p. 136.

[90]

Dr. Smith also relies upon the International
    Consensus Statement to a similar end. That report was prepared by 20 HIV
    scientists from different regions across the world. Correct condom use is
    defined as a condom being worn throughout the sex act and its integrity not
    being compromised: International Consensus Statement, at s. 2.2.

[91]

Bearing that definition in mind, the International
    Consensus Statement concludes that when a condom is correctly used, in an individual
    act of sexual intercourse, there is zero risk of transmission of HIV because
    bodily fluids containing the virus, like blood, semen, pre-seminal fluid,
    vaginal and anal fluids, cannot come into direct contact with sites in the body
    of an HIV-negative person where infection can be initiated, like mucous
    membranes or damaged tissue:
International
    Consensus
Report, at ss. 2.1 and 2.2.

[92]

Finally, Dr. Smith relies upon the Department of
    Justice Report, that concludes with a recommendation that the criminal law
    should 
generally
not apply to persons living with HIV who
are not
    on treatment but use condoms
because the realistic possibility of
    transmission test is likely not met (emphasis added): at p. 30. The appellant
    points out that in response to that report, the Attorney General of Canada
    adapted its policy direction to federal prosecutors, suggesting that the  Director
    shall
generally
not prosecutewhere the person has not maintained a
    supressed viral load but used condoms or engaged only in oral sex or was taking
    treatment as prescribed,
unless other risk factors are present

    (emphasis added): see Federal Prosecution Policy.

[93]

The Crown responds with evidence from two other
    experts: (a) Dr. William Yarber, a health behavioural scientist with
    specialized knowledge in the area of male condoms and problems with usage; and
    (b) Dr. David Fisman, the current Head of the Division of Epidemiology at the
    University of Toronto, with an expertise in, among other things, the epidemiology
    of sexually transmitted diseases including HIV. As will be explained later, Dr.
    Yarber catalogues the multiple challenges associated with correct condom use
    and the difficulties in achieving a perfect latex barrier to transmission.
    Among other things, Dr. Fisman addresses the importance of using
    population-level statistics when determining the risk of transmission
    associated with a sexual activity before it is undertaken.


2.

There is No Basis to Revisit the Supreme
    Courts Reliance on Population-Level Statistics

[94]

The appellant points to the following sentence
    from
Mabior
, at para. 98, to suggest that the court did not understand
    what he argues the new evidence shows, that consistent and correct condom use makes
    for a zero risk of transmission:

Dr. Smith testified that consistent condom
    protection reduces the risk of HIV transmission by 80%, relying on the widely
    accepted Cochrane review . It was pointed out that the 80% reduction in the
    transmission refers to consistent condom use:
the reduction may be larger
    for consistent
and
correct condom use, but this has not been verified
    empirically
. [Emphasis added.]

[95]

The appellant and interveners argue that the new
    evidence now verifies empirically that consistent and correct condom use brings
    the risk of HIV transmission to zero and
Mabior

should be
    adapted accordingly. Although they accept that some people are irresponsible
    condom users, they argue that the lack of due care on the part of others should
    not be visited upon responsible condom users. In other words, the criminal law
    should not be used to punish those who correctly use their condoms because
    those individuals do not place their sexual partners at risk.

[96]

The interveners clearly and helpfully summarize
    this position in the following passage reproduced from their factum:

By definition, population-level estimates
    factor in instances where condoms are
not
used correctly; those instances
    reduce the overall observed effectiveness, at the population level, of condoms
    for HIV prevention. It is unfair to convict an individual condom user  whose
    correct use of a condom would mean zero risk of transmission  on the basis of
    a population-level estimate that condoms are only 80% effective in reducing
    the risk of transmission (already an exceedingly small per-act risk),
    particularly in the absence of a finding that that individual engaged in
    incorrect condom use. [Emphasis added.]

[97]

In my view, there are three overarching
    difficulties with the appellant and interveners position: (a) the position
    conflates consistent and correct condom use with the ideal scenario in which
    condoms function perfectly, thereby failing to account for real-world
    situations in which condoms do not function perfectly; (b) it is contrary to
    the principles underlying epidemiology and the criminal law; and (c) it is
    inconsistent with the
Charter
values animating the
Mabior
rule.

a.

Consistent and Correct Condom Use Does Not
    Mean Zero Risk of Transmission

[98]

First, the position conflates fundamentally
    different concepts. The term correct condom use is used as if it were a proxy
    for knowing in advance that a condom would be used perfectly and that the
    condom would function perfectly. These are not the same things.

[99]

There is no dispute that a perfectly functioning
    latex condom provides a perfect barrier to HIV transmission. Indeed, the
    Supreme Court of Canada well appreciated this fact in
Mabior
, as
    reflected at para. 98 of the decision: It is undisputed that HIV does not pass
    through good quality male or female latex condoms.

[100]

But, as the Supreme Court of Canada also understood, condoms do not
    always work as they are intended to work: condom use is not fail-safe, due to
    the possibility of condom error and human error:
Mabior
,
at
    para. 98. Indeed, from time-to-time, despite the very best intentions and
    efforts of sexual partners, condoms sometimes fail to work. Dr. Smith agreed
    during cross-examination that it is not possible to know prior to a sexual
    encounter whether perfect or correct use versus condom failure may happen.

[101]

Indeed, this court recently captured this concept in
R. v. Boone
,
2019 ONCA 652, at para. 122:

Dr. Tyndall agreed with Dr. Remis that condom
    use reduced the risk of transmission overall by about 80 percent. Dr. Tyndall
    also testified that if the condom was properly applied and did not malfunction
    during use, the risk reduction approached very near 100 percent. Of course, no
    one could know ahead of any particular sexual activity whether the condom would
    malfunction in some way.

[102]

There is an ample record on appeal, primarily led through Dr. Yarbers
    affidavit evidence, testimony, and accompanying reports, that supports the fact
    that sometimes condoms slip, break, leak, and otherwise fail. These events can
    happen despite efforts to the contrary.

[103]

As the respondent points out, multiple experts in this case,
    including Dr. Wobeser, Dr. Smith, and Dr. Yarber, provided evidence demonstrating
    just how many things can go wrong with male latex condoms, including:

·

Using a condom that has expired

·

Using a condom that has been incorrectly stored,
    including in a pocket and sat on

·

Using a condom that has been exposed to
    excessive heat

·

Opening a condom package in a way that damages
    the condom

·

Not squeezing the air out of the tip of the
    condom before application in order to leave a sufficient reservoir for semen

·

Not rolling the condom onto the entire penis

·

Using improper lubrication that can damage the
    condom

·

Withdrawing the penis in a way that results in
    the condom slipping off or spilling semen

·

Reusing a condom.

[104]

Moreover, these problems can be magnified when condoms are used in
    less than perfect settings, such as when they are applied in the dark, in small
    spaces, in awkward positions, or under the influence of intoxicants.  To adopt
    an expression used by the trial judge in this case, in the real world, even despite
    the best of intentions, things can and do go wrong with condom usage.

[105]

In fact, this case involves precisely some of those real world
    kinds of circumstances that may lean more heavily toward things going wrong:
    sexual intercourse taking place in locations that are less than conducive to
    the careful handling of this piece of latex, including in the dark in cars,
    parks, bushes, and school yards.

[106]

In addition, condom failure incidents are not always obvious. While
    some condom failure may come to the attention of the sexual participants, this
    is not always the case. As Dr. Fisman points out:

You dont have a biophysics lab present at the
    bedside after two people have sex so that you can look and see, is there any
    compromise of the condoms integrity and some of it may well be unrecognized
    because youre talking about potentially very small quantities of fluid and
    very small particles.

[107]

Indeed, the chances of noticing condom failure might be further
    minimized where one party to the sexual act has no knowledge that there is a
    risk of HIV transmission should the condom fail. Where a complainant is unaware
    of the risk, he or she may not be as vigilant with the condom use as might
    otherwise be the case.

[108]

Again, the circumstances of this case underscore that fact. By way
    of example, A.C. testified that the appellant usually brought his own condoms,
    put them on himself and disposed of them. She did not pay much attention to the
    procedure. In fact, she was not even sure if the condoms contained ejaculate
    when they came off: It was dark, so I couldnt tell. The lights were always
    off. As it turns out, unbeknownst to her, those condoms that she paid so
    little attention to were her sole line of defence against the baseline risk of
    HIV transmission because the appellant had not started taking antiretroviral medication
    during the many months while they were engaged in sexual acts.

[109]

Accordingly, correct usage does not necessarily mean that the
    condom functioned perfectly. Even in situations where there is a
    well-intentioned effort to achieve perfect usage, things can and do go wrong.

b.

Assessing Risk from a Population Level is
    Consistent with Epidemiology and the Criminal Law

[110]

What the appellant and interveners are really looking for is a legal
    rule that favours determining the realistic possibility of transmission by
    looking to the actual effectiveness of condoms at the exact time they are used.
    As the appellant argued on appeal, it should be for the Crown to prove beyond a
    reasonable doubt that a condom failed before the criminal law could even
possibly
apply.

[111]

This argument is inconsistent with risk assessment from an
    epidemiology perspective and is also inconsistent with the legal underpinnings
    of
Mabior.

[112]

As Dr. Fisman explains, looking to population-level statistics to
    predict risk at an individual level is the premise that underpins the entire
    field of epidemiology and is crucial to predicting the risk for an
    individual person. Any other approach assesses risk from an
ex post facto

perspective, one where the harm arising from the risk has either happened
    or not. As Dr. Fisman explains:

[I]ts very difficult to talk about
    probabilities when you are talking about an individual, because the event
    either happens or doesnt happen with an individual, its a 0 or a 1. Whereas
    in a population we can get into estimation of risks.  Post hoc you know with
    certainty what happened, but its sort of horse-and-barn-door stuff, its
    nonmodifiable, which is why its important to have estimates of risk ex-ante.

[113]

In contrast, I read Dr. Smiths evidence as essentially supporting the
    idea that, for purposes of the criminal law, risk of HIV transmission should
    only be assessed based upon the outcome of the event. When asked about
    whether population data has some relevance to informing the predictive
    probability of transmission of the virus, he answered: Well, I think in terms
    of preventive health education it would, but in terms of just legal system it
    would not.

[114]

Dr. Smith confirmed that this is his view of how the legal system
    should function. He went even further and provided his opinion that the legal
    system should not be dealing with cases involving only risk of transmission:

I think that the legal system should not be
    dealing with cases where there [has] not been transmission. Personally, I think
    it would be reasonable for the legal system to deal with cases where there has
    been transmission.

[115]

Of course, that is not a scientific or medical conclusion, but a
    legal one that is antithetical to the reasoning in both
Cuerrier

and
Mabior
.
In my view, Dr. Smiths evidence contains no new
    information about the effect of condom use on HIV transmission rates; rather, what
    has changed is his opinion that the criminal law should approach these risks
    differently than the Supreme Court chose to in those cases.

[116]

Although the appellant and interveners do not go quite as far as Dr.
    Smith by suggesting that only transmission cases should fall within the reach
    of the criminal law, they heavily rely upon his evidence to advance the
    position that the risk of transmission should only be looked at from an
    after-the-fact perspective. They argue that, at its highest, an after-the-fact
    inquiry should be made into whether the complainant was actually put at risk.
    This stands in direct opposition to the current forward-looking
Mabior

approach to assessing whether there exists a realistic possibility of HIV
    transmission at the time when the unwitting sexual partner offers his or her consent
    to the sexual activity in question.

[117]

In my view, their position is really a request to conduct a case-by-case
    approach to risk assessments in HIV non-disclosure cases. That approach was
    specifically rejected in
Mabior

because of the inherent lack of
    predictability that would result from any such approach:
Mabior
, at
    paras. 68-69. Indeed, it is that very kind of approach that led to great
    uncertainty in the wake of
Cuerrier

and why
Mabior

came
    along to inject certainty into this complex area of the law.

[118]

It is important that the criminal law be predictable. People need to
    know with some degree of certainty, before they engage in conduct, whether that
    conduct will be labelled criminal or not. The desire in
Mabior

to
    provide clarity in the operation of the criminal law is one of the foundational
    principles upon which the decision rests, and one that pushed toward a clear
    and easily applied test for when the realistic possibility of transmission of
    HIV would be negated:
Mabior
, at paras. 14, 19.

[119]

The appellants and interveners suggestion that the law move toward
    an assessment of whether there was a risk of transmission of HIV during a
    specific sexual encounter, based on whether condoms actually slipped, leaked,
    broke, or otherwise malfunctioned, would return the law in HIV non-disclosure
    cases to the undesirable world of uncertainty.

[120]

Moreover, I do not accept the appellants suggestion that the
    criminal law is designed only to address what actually happens as a result of
    what people do, not the risk they potentially put others at while doing it.
    Indeed, there are examples of the criminal law addressing its attention to
    risks before they materialize.

[121]

As the respondent points out, drinking and driving and unsafe
    storage of firearm offences constitute two examples of the criminal law
    specifically targeting perceived risk of harm before that risk is actually visited
    upon others.

[122]

I do not wish to be taken as suggesting that drinking and driving or
    unsafe storage of firearms offences are perfect analogies to HIV non-disclosure
    sexual assault-based offences. There is one important difference between them.
    When it comes to drinking and driving and unsafe storage of firearms offences,
    members of the public are not given the choice to voluntarily assume the risks
    associated with those activities. When it comes to HIV non-disclosure cases,
    though, members of the public are given that choice. The key is that they need
    to know there is a risk before they can choose to assume that risk.

[123]

HIV non-disclosure cases are therefore targeted at the deception
    involved in unilaterally placing complainants at risk without giving them the
    choice to voluntarily assume that risk and decide how to best manage that risk.

[124]

To this end, I would add the crime of fraud to this discussion.
    Indeed, the essential elements of fraud were discussed at some length in
Cuerrier

and, with some adaptation, formed the genesis of the approach to how fraud
    can vitiate consent in the HIV non-disclosure context:
Cuerrier
, at
    paras. 114-17. Drawing upon the courts prior authorities setting out the
    elements of fraud, including reference to
R. v. Théroux
, [1993] 2 S.C.R. 5,
Cory J. emphasized in
Cuerrier
that the essential elements of fraud are dishonesty, which can include
    non-disclosure of important facts, and deprivation or
risk of deprivation

    (emphasis added): at para. 116. In other words, a risk of deprivation to ones
    economic interests, through dishonest means, is sufficient for fraud. Take away
    the dishonesty and someone can voluntarily assume the risk of financial harm.

[125]

Cuerrier

took the same risk approach to HIV non-disclosure, by focussing on
    the risk to the complainant at the time that the consent is dishonestly
    procured. Take away the dishonesty and someone can voluntarily assume the risk
    of HIV transmission.

c.

Assessing Risk from a Population Level is
    Consistent with
Charter
Values

[126]

Mabior

reflects
    an exquisitely difficult balance between the rights of those living with HIV
    and the rights of those offering their consent to sexual activities without all
    of the information they need and would like to make that decision.

[127]

On the one hand, the court emphasized that the stigma attaching to a
    criminal conviction in this context should be reserved for conduct that is
    highly culpable in nature:
Mabior
,
at para. 19. On the other
    hand, the court emphasized the
Charter

values of equality,
    autonomy, privacy, liberty, and bodily integrity, all of which promote respect
    for sexual participants and their dignity as human beings: see
Mabior
,
    at para. 45. See also
Ewanchuk
, at paras. 27-28;
Barton
, at
    paras. 88-90, 109. These are the
Charter

values animating the
Mabior

decision and underpinning the complainants right to be informed of a
    partners HIV status in the circumstances described in
Mabior
.

[128]

It is against that backdrop that the court spoke of [o]ur modern
    understanding of sexual assault, one that is based on the preservation of the
    right to refuse sexual intercourse and the need to interpret s. 265(3)(c) within
    that context:
Mabior
,
at para. 45.

[129]

In my view, the use of population-level statistics to assist in
    determining the risk of HIV transmission during condom-use-alone sexual
    intercourse is entirely consistent with our modern notion of consent to sexual
    activity and what may operate to vitiate that consent.

[130]

From a consent perspective, it makes sense to consider the risk of
    HIV transmission during a sexual act from a forward-looking perspective. After
    all, if risk is to be looked at after condom failure, then the complainant has
    already been put at risk without having voluntarily assumed that risk. This
    hindsight approach to risk, after the risk has been involuntarily and
    unknowingly assumed, would do little for the modern-day notion of consent and
    the preservation of the right to refuse intercourse. In my view, the
Mabior

rule is about preventing the consenting party from having the risk of
    contracting an indisputably serious, life-altering disease unilaterally imposed
    upon him or her in the first place:
Mabior
,
at para. 88.

[131]

While I accept that HIV is now a manageable disease, it remains incurable
    and indisputably chronic, such that it could change the entire course of a
    sexual partners life:
Canadian Consensus
Statement, at p. 138;
International
    Consensus Report
,
at s. 2;
Department
    of Justice
Report, at pp. 3-6. While AIDS can be avoided, to date,
    HIV cannot be cured: Department of Justice Report, at p. 3. Among other health
    complications, HIV requires antiretroviral medication, leaves a person
    susceptible to other infections because of the immune system impairment, and brings
    about periods of ill health and disability: Department of Justice Report, at pp.
    5-6.

[132]

It is only by resorting to population-level statistics that forward-looking
    risk can be assessed.


3.

The Risk of Condom Failure in the Cochrane
    Review is Not Overinflated

[133]

The appellant also argues that the population-level statistics
    contained in the Cochrane Review are suspect. First, he says that those
    statistics  as relied upon by the Supreme Court of Canada in
Mabior

and by Dr. Wobeser at trial  are predicated on groups of always condom
    users and never condom users.

[134]

As for the always condom users, the appellant argues that there is
    likely some social acceptability bias embedded in the statistics because it
    involves self-reporting, where people will be motivated to suggest they took
    appropriate precautions prior to becoming seroconcordant (the non-HIV-positive
    sexual partner moving to a positive status). This would lead to some people
    reporting using condoms when they did not actually use condoms, causing some
    instances of transmission from sex without condoms to be recorded as
    transmission from sex with condoms. That could lead to condoms appearing less
    effective than they actually are.

[135]

The appellant also suggests that there may have been some
    difficulties with some of the underlying studies informing the Cochrane Review.
    For instance, in one of the studies, where there had been four seroconversions involving
    people who claimed to have always used condoms, the authors of that study noted
    that there had been improper or incomplete condom use in a number of the
    cases. In another study, the appellant suggests that, because of the way in
    which the seroconversions were assigned to specific time frames, it may be that
    it had the effect of misclassifying the effectiveness of condoms. He argues
    that some seroconversions were assigned to timeframes during which the couple
    reported always using condoms, but transmission may have occurred during an
    earlier timeframe when they were not using condoms. Again, if this occurred, it
    would lead to condoms appearing less effective than they actually are.

[136]

This argument is rooted in the suggestion that, even if it was right
    for the Supreme Court to assess the risk of transmission of HIV with the use of
    population-level statistics, it was wrong to have uncritically accepted the
    Cochrane Review as accurately containing the condom failure error rate across
    the population.

[137]

The respondent relies upon the evidence of Dr. Yarber, an expert on
    condom use and failure rates. The appellant challenges Dr. Yarbers numbers,
    arguing that, in fact, the rates for condom breakage, leakage, slippage, late
    application, and early removal events are much smaller than he suggests.

[138]

The respondent disputes the appellants characterization of the
    statistics, claiming they are actually much higher than the appellant suggests.
    Relying upon a study that Dr. Yarber co-authored, the respondent suggests that
    condom use errors must be considered in light of studies showing the combined
    rates for different types of condom failure together, some of which are well
    over the 20 percent range:
Sanders et al.
, Condom use errors and problems:
    a global view (2012), 9 Sexual Health 81, at p. 90. That is, the chance of the
    condom slipping
or
breaking
or
otherwise failing  the chance of
    the condom failing in some way  can be over 20 percent.

[139]

I do not intend to address the specific statistics for condom slippage,
    breakage, leakage, and the like. At the end of the day, in my view, the
    Cochrane Review relied upon by the Supreme Court in
Mabior

has
    not been shaken in any meaningful way by the new evidence here.

[140]

Indeed, Dr. Smith acknowledged during cross-examination on the
    reopening application that the Cochrane Review is a meta-analysis that remains
    widely respected as a valiant attempt to measure the average risk of
    transmission in the real world. Dr. Smith also referred to the Liu Study that
    suggests much lower rates of transmission with condom use, but the validity of
    that study has been called into question. Dr. Fisman provides evidence that the
    study is highly questionable and, in fact, is out of keeping with scientific
    consensus: see
Liu
,
et al.
, Effectiveness of ART and Condom
    Use for Prevention of Sexual HIV Transmission in Serodiscordant Couples: A
    Systematic Review and Meta-Analysis (2014) 9:11 PLoS ONE e111175.  Serodiscordant
    means one partner is infected and the other is not.

[141]

I agree that the Cochrane Review, as Dr. Smith suggested on the
    reopening application, is still widely accepted.  Indeed, the Public Health
    Agency of Canada performed a synthesis of current medical evidence relating to
    HIV transmission rates published in 2018 and relied in part on data from the
    Cochrane Review:
Traversy LeMessurier
,
et al.
, Risk of
    Sexual Transmission of Human Immunodeficiency Virus with Antiretroviral Therapy,
    Supressed Viral Load and Condom Use: A Systematic Review (2018), 190, Can. Med.
    Assoc. J. E1350. An earlier version of that synthesis was also relied upon by
    the Department of Justice in determining the rate of HIV transmission when
    condoms are used alone: Department of Justice Report, at p. 8. The
    International Consensus Statement also relied on the Cochrane Review: see fns.
    17, 22, 69.

[142]

According to Dr. Fisman, whose evidence I accept, the Cochrane
    Review represents a reasonable assessment of condom effectiveness across the
    population, as imperfect as that is. For every act of vaginal intercourse,
    the Cochrane Review concluded that condom use resulted in an 80.2 percent
    relative reduction in HIV transmission, the best-case estimate being 94.2
    percent and the worst-case estimate being 35.4 percent. In other words, as Dr.
    Fisman put it, condoms could be better than we think they are or they could
    be worse than we think they are. Indeed, the Cochrane Review itself
    acknowledges that condom effectiveness could be under- or overestimated by the
    study and, importantly, the Supreme Court of Canada had that evidence before it
    when
Mabior

was decided.

[143]

Even if the reduction rate for the transmission of HIV is slightly
    higher than what the Cochrane Review suggests, the fact remains that, from an
    admissibility perspective, that new evidence is not sufficiently cogent to be
    granted admission.

[144]

While the appellant quarrels with the precise reduction in risk of
    transmission arising from condom use alone, even if he is right, his position
    cannot succeed. To this end, it is notable that the Supreme Court decided that
    the potential reduction in baseline HIV transmission rates arising from the
    taking of antiretroviral medication was in the range of 89 to 96 percent:
Mabior
,
    at para. 101. Yet the court was not satisfied that even that level of reduction
    in baseline risk of transmission could qualify as negating the realistic
    possibility of HIV transmission.

[145]

Therefore, even if I were to accept (which I do not), that at a population
    level, the use of condoms alone reduce the risk of transmission of HIV up to even
    the 96 percent mark, on the
Mabior

analysis, that would still
    be insufficient, on its own, to negate the courts view of what constitutes a realistic
    possibility of transmission.

[146]

I conclude this section by making two practical observations in
    response to the appellants and interveners characterization of the
Mabior

decision as criminalizing an infinitesimal risk of transmission. They
    emphasize that the baseline risk of HIV transmission is so infinitesimal that
    it cannot possibly rise to the level of a realistic possibility of harm, let
    alone when that baseline risk is pulled down by another at least 80 percent
    through condom use. I note that the appellant and interveners are not alone in
    that position: Martha Shaffer, Sex, Lies, and HIV: Mabior and the Concept of
    Sexual Fraud (2013),

63 U. Toronto L.J. 466, at pp. 472-73; Isabel
    Grant, The Over-Criminalization of Persons with HIV (2013), 63 U. Toronto
    L.J. 475, at pp. 479-80.

[147]

It is important to note, though, that the argument suggesting that
    there is only an infinitesimal risk of transmission arises from statistics predicated
    on two things: (a) a per-sex-act consideration of risk; and (b) only the
    baseline risk relating to vaginal-penile intercourse.

[148]

First, the baseline statistic for risk of transmission in
Mabior
is based upon a single act of vaginal-penile intercourse. As pointed out by Dr.
    Wobeser, though, that risk repeats itself with every repeated act of sexual
    intercourse. Therefore, even if the per-act baseline risk, as reduced by condom
    use, could be called infinitesimal, one cannot lose sight of the fact that the
    risk adds up over time. In other words, even if the risk of engaging in a
    behaviour with an infected partner once could be called infinitesimal, when
    that behaviour is repeated, so too is the risk of transmission.

[149]

As Dr. Fisman explained, the risk is cumulative with each sexual
    act, meaning that following a number of sex acts involving the same
    serodiscordant couple, the Bernoulli (or coin-toss) model would apply. The
    risk of the event occurring at least once would be estimated using a formula
    that applies an exponent equivalent to the number of sex acts that have
    occurred. Put simply, the risk of transmission exponentially increases with
    each sexual act involving the same serodiscordant couple.

[150]

In my view, the repeated risk of harm that comes with each act of
    sexual intercourse between the same serodiscordant couple partially informs the
Mabior

rule that condom use alone does not negate the realistic
    possibility of transmission. While some HIV non-disclosure cases involve
    one-time encounters, others involve repeated acts of sexual intercourse where
    there is no disclosure made to the unwitting partner, such as the acts of
    vaginal sex with A.G. and A.C. in this case. Clearly, the cumulative risk for
    these complainants rose with each act of intercourse.



[151]

Second, I would make the observation that, when it comes to sexual
    intercourse, the baseline transmission rates differ somewhat significantly between
    vaginal and anal intercourse. One systemic review, adopted in the Department of
    Justice Report, at p. 10, places the baseline transmission rate for receptive
    vaginal intercourse (risk to the receptive partner) at 8 in 10,000 (0.08
    percent), while it places the transmission rate of receptive anal intercourse
    at 138 in 10,000 (1.38 percent). See also International Consensus Statement, at
    ss. 2.3.2. and 2.3.3.

[152]

In my view, these two factors, cumulative risk over many sex acts,
    and differing baseline risks depending upon the nature of the sex acts, informs
    the wisdom of the
Mabior

approach in creating a singular, easy-to-understand,
    and easy-to-apply rule for the application of the criminal law. Under the
    present
Mabior

regime, the criminal law cannot apply
    differently based upon the nature of a sexual act or the number of times those
    acts take place within the same serodiscordant couple. Any other approach would
    carry serious implications in terms of equality and return this already complex
    area of the law to the world of uncertainty.

[153]

Accordingly, while the statistical backdrop for the
Mabior

decision may be at the low end of what is meant by a realistic possibility
    of transmission, there are other scenarios to which the statistical backdrop
    looks much different.

IV.

Policy Reasons to Change
Mabior

[154]

I will conclude by addressing the interveners arguments about policy.
    As they say, it is bad public policy to criminalize people who use condoms.
    They advance four arguments in support of that position. They maintain that the
    criminalization of HIV non-disclosure where condoms are used:

·

is too blunt an instrument because the HIV-positive persons conduct
    is not truly blameworthy in nature, particularly given that the risk of HIV transmission
    in these circumstances is non-existent or negligible at worst;

·

ignores scientific evidence and results in state-sanctioned stigma
    and discrimination against people living with HIV;

·

has the effect of contributing to a broad societal misunderstanding
    about HIV and serves to exacerbate the stigma surrounding the disease, all of
    which can work to the detriment of public health; and

·

compounds the disadvantage of already significantly disadvantaged
    groups.

[155]

There is no doubt that the criminal law is the bluntest of
    instruments, properly reserved for only those situations where conduct is so morally
    blameworthy that it deserves to be labelled criminal.

[156]

Nor can there be any doubt that the stigma associated with a
    criminal conviction only compounds the difficulties of those living with HIV,
    an already vulnerable group, many of whom come from historically marginalized
    and disadvantaged situations: See e.g. Department of Justice Report, at p. 4.

[157]

The fact is that there are many different models for how to approach
    HIV non-disclosure cases. Some of those other models were reviewed by the
    Supreme Court of Canada in
Mabior
: at paras. 49-55. And, as noted in
Mabior
,
at para. 51, there are few jurisdictions that criminalize deception that only
    exposes a partner to the risk of transmission (as opposed to actual
    transmission).

[158]

Not only is the deception that exposes a sexual partner to a risk of
    transmission criminalized in Canada, but the most frequently chosen path of
    prosecution is by way of the most serious sexual offence known to law:
    aggravated sexual assault, an offence punishable by up to life in prison.

[159]

Although this appeal raises the singular issue of the effectiveness
    of condoms at preventing HIV transmission, there is much to be said for the
    fact that other things may have changed since
Mabior
. A prime example
    of change involves the current understanding around suppressed and undetectable
    viral loads. This significant change is reflected in the policies of some Attorneys
    General in Canada not to prosecute matters involving these circumstances. There
    are others, like the federal Attorney General, who have also started to put in
    place specific condom-related prosecution policies, directing that, as a
    general rule, there be no prosecutions in situations where condoms are used
    as long as there are no other risk factors present.

[160]

The ability of the common law to adapt is important in this context.
    Even so, the interveners arguments call upon this court to overturn the clear
    legal result in
Mabior

based upon policy arguments.

[161]

While there may come a day where there is a reconsideration of the
    intersection between the law of aggravated sexual assault and HIV
    non-disclosure risk of transmission cases, this is not that case. The sole
    issue raised in this appeal relates to the suggestion that, since
Mabior
,
there have been changes to how we should understand the effectiveness of
    condoms at preventing HIV transmission. To that end, I adopt the trial judges
    observation that 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.

[162]

The
Mabior

decision reflects the Supreme Courts
    appreciation for the fact that perfectly operating latex condoms provide a
    perfect barrier to the transmission of HIV. It also reflects the courts
    understanding that sex happens in the real world and that, in that world, human
    error and condom failure are concerns across the population. It also reflects
    the courts decision to criminalize the risk of transmission from a
    forward-looking perspective, one that takes into account the need for certainty
    in the criminal law. Finally, it accommodates an interpretation of s. 265(3)(c)
    of the
Criminal Code
that is consistent with our modern notion of
    consent to sexual activity.

[163]

In my view, there is nothing in the new evidence that reveals a
    change in the facts upon which
Mabior
s
legal reasoning rests. The
    fresh evidence on appeal is not cogent and is not admissible. The trial judge
    did not err in excluding Dr. Smiths evidence on the reopening application.

Conclusion

[164]

On consent, I would amend count 3 on the indictment to reflect the
    offence commencing on October 20, 2013 and continuing to June 24, 2014.

[165]

I would dismiss the fresh evidence application. I would dismiss the
    appeal.

Released: P.L. August 5, 2020

Fairburn J.A.

I agree. P. Lauwers J.A.

I agree. Gary Trotter J.A.





[1]
Although the
Mabior
decision does not specifically define
    what constitutes a low viral load, it describes a viral load of less than 1,500
    copies of HIV present in a millilitre of blood as low: at para. 100.



[2]
Although the complainants in this case testified about also having
    had condomless oral sex with the appellant, the trial judges reasons focus on
    the risks of transmission associated with the acts of vaginal intercourse. Therefore,
    these reasons are similarly focused on the acts of vaginal sexual intercourse.



[3]
The appellant and interveners also draw this courts attention to
    the trial decision in
Thompson,
what they put forward as the only post-
Mabior
decision that suggests that condom-use alone (combined with no ejaculation)
    is sufficient to negate the realistic possibility of HIV transmission.



[4]
The respondent also raises a concern about the final prong of the
Palmer-Truscott
test: diligence. In my view, there is no need to address that concern given
    that the appeal fails on the cogency element.



[5]
See, for instance, cases that include convictions for offences in
    addition to aggravated sexual assault:
R. v. Iamkhong
, 2009 ONCA 478,
    250 O.A.C. 220;
R. v. Booth
, 2005 ABPC 137, 382 A.R. 116;
R v. Boone
,
    2019 ONCA 652;
R. v. Aziga
, 2011 ONSC 4592, appeal as of right filed. See
    also, Department of Justice Report, at pp. 11 and 13.



[6]

R. v. D.C
., 2012 SCC 42, [2012] 2 S.C.R. 626,

was
    released at the same time as
Mabior,
simply applying the
Mabior
test
    to the facts of that case.



[7]
The new evidence on appeal is focused upon male condoms. As this
    case involved the use of male condoms, I remain similarly focused.


