[Update]Canada: Man living sentenced 3.5 years for HIV non-disclosure despite wearing a condom, released on bail pending appeal hearing

January 21, 2019

Source: Sootoday, Published on January 21, 2019

Man convicted of not disclosing HIV status released pending appeal

 

He was sentenced to 3.5 years in November.

The province’s top court has released XX from custody pending the Sault Ste. Marie man’s appeal of his aggravated sexual assault convictions.

Superior Court Justice Edward Gareau sentenced him to 3.5 years in prison on Nov. 19 for failing to disclose his HIV status to three sexual partners.

The Ontario Court of Appeal granted the 28-year-old bail last month as he awaits a hearing on his appeal, his lawyer Jennifer Tremblay-Hall said Monday.

X was convicted of three counts of aggravated sexual assault, following a trial where the court heard testimony from a trio of women who met him through a dating website.

The offences occurred between July 2013 and April 2014.

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Published in Sootoday on November 20, 2017

HIV-positive man going to penitentiary for aggravated sex assaults

He used a condom, but the judge noted because he wasn’t taking antiretroviral medication it was possible he could have transmitted the virus.

X was escorted out of the courtroom in handcuffs Monday, after he was imprisoned for 3.5 years for failing to disclose his HIV status to three sexual partners.

Superior Court Justice Edward Gareau imposed the 42-month penitentiary term following the local man’s conviction a year ago on three counts of aggravated sexual assault involving a trio of women.

“Mr. X violated the trust of the complainants,” the judge said. “Mr. X exploited the complainants and was dishonest with them to satisfy his own sexual interests and desires.” 

The offences occurred between July 2013 and April 2014 with women he had met through a dating website.

A publication ban protects the identity of the victims.

Gareau noted that although X had used a condom during his acts with the complainants, he was not taking antiretroviral medication and his viral counts were not low, resulting in a realistic possibility that the HIV virus would be transmitted. 

“This, in my view, reflects on his moral culpability and although he ignored the warnings and advice of the public health officials, his condom use places him in the category of being reckless as opposed to intentionally trying to transmit the HIV virus.”

Gareau imposed three consecutive prison terms for the 28-year-old’s actions – 18 months on one count and 12 months each for the other offences.

He described X as “particularly cruel and cavalier” in the count that drew the lengthier sentence.

The complainant was medically vulnerable – she had disclosed to X that she had leukemia, and had undergone chemotherapy and a stem cell transplant, the judge said.

“Yet he took no steps to disclose his HIV status,” Gareau said, indicating this is an “aggravating factor of some significance” that set the woman apart from the other victims.

In his sentencing decision, he also pointed to one of the other women’s “powerful” victim statement that provided a “clear demonstration of the devastating and negative impact” X had on the victims.

The woman’s emotional pain was apparent as she read her statement to the court in September, Gareau said.

She described her shock and disbelief on Oct.31, 2014, when she read an online news report about X’s charges and condition which put her at risk.

“I was distraught,” she told the court, outlining how she had hurt her now former husband, the person “I had loved the most,” and destroyed their relationship.

The following three months, she was in despair and suicidal, and in June 2015 “my life as I knew it was over.” 

The woman said she took responsibility for what she had done, moved out on her own, and penniless, with the help of friends somehow managed to survive.

“I couldn’t complete simple tasks, because I felt so much shame and regret,” she said, detailing how she cried every day for two years.

“Hiding my shame was eating me alive,” the woman said, also indicating “taking responsibility is the only way to move forward.”

She told Gareau a jail sentence for X won’t make this better or take any of the pain away.

“But it would make me feel better, knowing that the victims aren’t the only ones shouldering this burden,” she said. “The defendant needs jail time.”

When he imposed sentence, Gareau spoke about a number of mitigating factors, including X’s lack of a criminal record and positive pre-sentence report.

During his discussions with the report’s author, X had expressed “remorse for his actions and the impact on the victims.” 

This, along with X’s statement to the court before sentencing, satisfied him that the man’s “feeling of remorse is genuine,” the judge said, calling it a positive mitigating factor.

Prosecutor Dana Peterson was seeking a global sentence of five years. Defence lawyer Jennifer Tremblay-Hall suggested a suspended sentence, with 12-to-18 months probation and strict conditions, which would amount to house arrest.

Gareau noted that in sentencing for this type of offence, “the principles of denunciation and deterrence remain paramount.”

He also indicated that in sentencing X he had kept in mind Criminal Code provisions which state “Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.”

In addition to the prison sentence, X must provide a DNA sample for the national database and is prohibited from possessing firearms for 10 years.

As well, he must register as a sex offender for life.