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

Appeal

Man convicted of not disclosing HIV status released pending appeal

Source: Sootoday

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.

Sentencing

HIV-positive man going to penitentiary for aggravated sex assaults

November 20, 2018
Source: Sootoday

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.

Trial

HIV-positive man had 'absolute disregard' for women he slept with and should go to jail, says Crown

September 24, 2018
Source: Sootoday

Victim says justice system left her feeling humiliated

Oct. 31, 2014 – the date is singed in her memory.

“Part of me died” when “to my horror and shame I read about the accused online,” a local woman told a judge Friday in a powerful and emotionally-charged victim impact statement at a sentencing hearing for X.

“That night my world changed,” she said, detailing how her life exploded when she learned that the then 25-year-old man had been charged with aggravated sexual assault for failing to disclose to two women he had sex with that he was HIV positive.

He was known to have accessed dating websites, and the Sault Ste. Marie Police Service felt there might be more victims, so along with Algoma Public Heath (APH), was encouraging women who had sexual relations with him to seek medical attention.

“I went to the police to give a statement and the hospital to be tested,” said the woman, one of the three complainants who testified at his trial.

She told Superior Court Justice Edward Gareau she was “in disbelief” and knew she had to tell her husband and “hurt the person I loved.” 

“My life as I knew it was over,” she said, describing her depression, suicidal thoughts and how she “cried every day for two years.”

The woman also outlined her frustration with the justice system that has taken four years to get to this point, following an “impossibly long, frustrating, demeaning trial” that left her feeling “so humiliated.”

“I’m tired and weary,” she said, continually fighting back tears. “I never thought I’d be so distraught over the justice system and the police service. I wish I never came forward.

“I paid a price and it wasn’t worth it,” said the woman, who indicated she has lost her husband and family because she has taken responsibility for her actions.

A jail sentence for X “won’t make this better, won’t take the pain away, but would make me feel better,” she admitted.

The Crown is seeking a five-year-prison term for X, while the defence urged the judge to impose a suspended sentence with restrictive conditions.

Gareau will give his decision Nov. 19.

He found X guilty of the three aggravated sexual assault offences, which carry a maximum penalty of life behind bars, in November 2017, following a seven-day trial that took place in June and July of that year.

The offences occurred between July 2013 and April 2014. 

During the trial, Gareau heard the accused went to  Sault Area Hospital with possible pneumonia on Oct. 10, 2013, where blood tests, including HIV screening, were ordered.

Ten days later, he learned his test results indicated he was HIV positive.

The court also heard APH had previously contacted X, on Jan. 14, 2010, to inform him he had been named as a contact for a non-confirmed case of HIV.

He was advised that he should be tested for HIV, that he should disclose his status to any sexual partners, and should use a condom for oral, vaginal and anal intercourse. 

X began treatment in April 2014.

At the sentencing hearing last week, prosecutor Dana Peterson argued that he willfully ignored public heath’s repeated and extensive counselling about the risk factors and the need to advise partners of his status.

A year after he had been diagnosed, APH became aware he was not divulging his status, which resulted in a Superior Court order requiring him to disclose the names of those he had sexual contact with and to use condoms at all times, she said.

X “showed callous disregard for the integrity of these women,” the assistant Crown attorney told the judge, adding that despite the health unit’s efforts he didn’t provide the names of the three complainants.

Peterson said there is a need for specific deterrence in this case.

“I’m not suggesting he deliberately wanted to infect the women,” but “there was absolute disregard for their safety.”

X had multiple partners, and the sexual activity involved multiple acts, and each increased the risk of exposure, she said.

“The only true mitigating factor in this case is his lack of a criminal record and age at the time.”

Since X is a first offender, it’s important that the sentence, which is solely for the purpose of deterrence, should be as short as possible, the prosecutor said.

In this case with multiple victims the sentences should be consecutive, totalling eight years would be appropriate, Peterson suggested.

Calling such a sentence “significant and crushing” to X, she said the Crown is proposing a global sentence of five years.

This prosecution and the law is not about punishing a person who is HIV positive, Peterson said.

“He repeatedly withheld information from sexual partners that is why it is a criminal offence.”

Defence lawyer Jennifer Tremblay-Hall argued the court should sentence her client based on a December 2017 federal government review of the Canadian criminal justice system’s response to HIV non-disclosure.

The report’s conclusions outline the circumstances in which “the criminal law should not apply to persons living with HIV who have engaged in sexual activity without disclosing their status.”

It provides a new understanding and approach for such an offence, which previously resulted in jail terms, she said.

She called the report a guide on how the court should proceed, suggesting “that it’s not a slam dunk anymore, not one size fits all.”

Tremblay-Hall said she doesn’t think this new approach minimizes X’s wrongdoing for not disclosing his status in 2014.

She suggested X’s “moral blame worthiness is on a very low level.”

“He was consistently using condoms, consistently precautious,” the defence said, conceding he may have been reckless, because he took away the women’s consent, which is “very wrong.”

X didn’t have unprotected sex and wasn’t engaged in high-risk conduct because he was on a dating site, she said.

Tremblay-Hall pointed to a number of mitigating factors – constant use of condoms, consistently taking his medication and no previous criminal record.

“He didn’t act in a predatory manner with any of the complainants, there was no maliciousness, no intention to infect anyone, no planning.”

She proposed that X receive a suspended sentence with lengthy restrictions, including strict conditions limiting his liberty for six months and a high amount of community service.

Such a sentence would address the principles of deterrence and denunciation “in light of this new approach (by the government).”

X told Gareau he was sorry and wished he hadn’t made these mistakes.

“I’d like to apologize to the complainants,” he said, turning his head to look at the woman who had read her victim impact statement to the court.

“I never intended this to happen to any of them.”

Appeal lost

ONTARIO: HIV sex assault sentencing to go ahead, judge rules

June 20, 2018
Source: BarrieToday.com

The case centred around the issue of significant risk of bodily harm and whether there was a realistic possibility of transmission.

SAULT STE. MARIE — Superior Court Justice Edward Gareau has nixed a local man’s bid to have his conviction on three counts of aggravated sexual assault re-opened so the court could hear further expert evidence on HIV transmission.

The judge dismissed X’s application Tuesday morning — the day after he heard from the proposed witness, a Manitoba physician qualified by the court as an expert on the risk transmission of HIV, and listened to the legal arguments made by the Crown and defence.

“I spent all evening reflecting on it,” he said, before indicating he believes the proposed new evidence doesn’t meet the high threshold of the cogency test for such applications.

Gareau said he will provide full reasons for his decision at a later time.

X will return to court Wednesday so that a date can be set for sentencing.

“This has not been an easy case, from start to finish, and it’s just getting harder as we go along,” Gareau told the lawyers Monday after they completed their submissions to the court.

 He then said he might be able to tell them his decision, maybe without reasons, on Tuesday.

Gareau found the young man guilty of the charges for not disclosing his HIV-positive status to three sexual partners — two of whom he met through an online dating site — in November.

The convictions followed a seven-day trial that took place last summer.

During the trial, three women, whose identities are protected by a publication ban, testified that they had sexual relations with X between July 2013 and April  2014. 

The case centred around the issue of significant risk of bodily harm and whether there was a realistic possibility of transmission.

X was slated to be sentenced March 26, but the hearing was adjourned because a court-ordered report wasn’t ready.

It was scheduled for May 14, and it was then that X brought the application to re-open his conviction so that he could call  “new evidence.”

On that date, after hearing submissions from assistant Crown attorney Dana Peterson and defence lawyer Michael Lacy, the judge decided to hear the application this week.

Appeal

HIV positive man who didn't tell partners wants conviction reopened

June 19, 2018
Source: SooToday.com

His lawyer says he wants a judge to hear fresh evidence

A local man wants the judge who convicted him last fall of aggravated sexual assault after he failed to disclose his HIV-positive status to three women to re-open his case so he can provide “new evidence” to the court.

Superior Court Justice Edward Gareau found X guilty of the offences involving a trio of sexual partners in November, following a seven-day trial that took place in June and July 2017.

The women had sexual relations with X between July 2013 and April 2014.

On Monday, Gareau heard an application, filed by the defence, to re-open X’s conviction so that he can call evidence from a Manitoba doctor, qualified by the court as an expert on biology and the risk of transmission of HIV.

Toronto lawyer Michael Lacy told the court he wasn’t requesting a mistrial, but wanted the case re-opened, so that Gareau could hear evidence from Dr. John Richard Middleton Smith.

The central question for the court is whether it is in the interest of justice to allow the applicant the opportunity to address “fresh evidence” and “would the failure to do so be a miscarriage of justice,” he said.

Prosecutor Dana Peterson argued that the application should be denied, maintaining that Smith had nothing new to add to the evidence the court heard from another expert during the trial.

“There was no miscarriage of justice here,” the assistant Crown attorney maintained, suggesting testimony the court heard from Smith on Monday didn’t “cast a new light on anything.”

The issue in this case was the effectiveness of condoms. It was acknowledged in an agreed statement of facts and medical information provided at the trial that X was untreated at the time of the occurrences and the only protection used was condoms, she said.

Peterson said the court had heard scientific evidence from an expert witness, and Smith hasn’t identified any drastic changes in the use of condoms.

“All of this evidence was before you, and having it presented by two doctors wouldn’t have made a difference,” she told the judge.

“How could it. It was the same evidence.”

Lacy said “this is a very serious case” for X, who has been convicted of one of the most serious crimes in the Criminal Code.

“Understanding of HIV is evolving,” he said, urging Gareau to re-open the conviction and hear the evidence.

“Only then will justice be served in this case,” he said, after noting there would be latitude for the Crown to call further evidence.

Following his Nov. 15 conviction, X’s sentencing was adjourned until March 26 so that pre-sentence and Gladue reports could be prepared.

The sentencing didn’t go ahead on that date, because the Gladue report wasn’t ready, and it was put over until May 14.

Last month, the sentencing was again delayed when X brought the application to re-open his conviction, and Gareau agreed to hear the motion.

The case centred around the issue of “significant risk of bodily harm” and whether there was a realistic possibility of transmission.

One of the women tested positive for HIV in October 2014.

The early diagnosis enabled effective treatment, the court was told during the trial.

Two of the complainants met X through a dating website, while the third was introduced to him by a member of his family.

Gareau heard neither the women nor X intended or wanted long-term or “boyfriend/girlfriend” dating relationships and the sole purpose of their encounters was to have sexual relations.

Prior to Monday, Lacy and Peterson provided the court with written arguments, case law, factums and sworn affidavits in support of their positions on re-opening the case.

The Crown cross-examined Smith on his affidavit yesterday, via video hookup.

He told Peterson he retired from Manitoba’s HIV care program 10 years ago, but continues to practise medicine.

Gareau also heard from X’s lawyer, Jennifer Tremblay-Hall, who outlined the steps she had taken to get an HIV expert to testify at the young man’s trial, and the restrictions placed on her by Legal Aid, including a requirement that she find someone in Ontario.