[Update]Canada: BC Appeal Court upholds decision against man sentenced to 4-years in prison for alleged HIV non-disclosure

The pair met through a mutual friend in the summer of 2016.

A man convicted of aggravated sexual assault due to his failure to inform a woman of his HIV-positive status before having sex lost his appeal in court Monday.

X was sentenced to four years, less time served. He had appealed to have new evidence introduced and to have a mistrial declared.

Following his conviction, his applications to reopen the defence case to introduce new evidence and for a mistrial were refused.

He appealed to the province’s high court, saying B.C. Supreme Court Justice Martha Devlin erred during his Chilliwack trial. He argued the judge failed to consider relevant evidence. In dismissing his application to reopen the case, X said the judge failed to consider evidence about what others may have told the complainant about his HIV status.

Court of Appeal Justice Sunni Stromberg-Stein said the issue at trial was whether X told the woman before having sex that he was HIV‑positive and that she had a realistic possibility of contracting the virus from him.

“He represented, to the contrary, that his illness was not transmissible,” Stromberg-Stein said.

The woman testified that a mutual friend introduced her to X in June or July of 2016, according to the Nov. 14 decision.

Before they met, the friend told her X had HIV. By August 2016, the woman and X were engaged in a sexual relationship and using condoms. She subsequently had a conversation with X regarding his HIV status. She asked him whether she needed to be worried about contracting HIV.

The court decision said she described X becoming increasingly agitated, angry and frustrated during the conversation.

“He told her, ‘No, I have an immune disorder, but you can’t contract it.’

“She asked, ‘So you don’t have HIV?’ And he responded, ‘No, I don’t have HIV.’”

He said the people who said he had HIV were slandering his name and trying to make him look bad so she wouldn’t want to be with him. She believed him, state court documents.

After that discussion, they decided to stop using condoms, the court heard. She said that had X told her he was HIV‑positive, she would have consulted a doctor and would have insisted on condom protection.

In October 2016, she moved to X’s farm.

The next month, she went to the hospital for a vaginal infection. Blood work was done because she told the doctor she was concerned her boyfriend might have HIV. She tested negative for HIV. She said she felt reassured X was telling the truth.

The following January, she ran away from X’s farm and was subsequently committed to a hospital under the Mental Health Act. She was experiencing drug‑induced psychosis and having delusions and hallucinations, according to the appeal court ruling.

“Blood work ordered during her hospital admission revealed that she was HIV‑positive,” the decision said. “She felt foolish for trusting Mr. X and not listening to her friend and his niece.”

X testified he learned he was HIV‑positive in 2005 or 2006.

He said he told her he did have HIV, and he thought he got it from a transfusion as a child.

On cross‑examination, he clarified he told her he had an autoimmune deficiency, he was on medication, it was supposed to be non‑transferable, and he probably got it when he had cancer as a child.

He claimed they always used condoms.

Rick X testified he met the woman about two days after his brother did. At their first meeting, he told the woman, in the presence of X, “You’re playing with fire; my brother has HIV.”

Stromberg-Stein said Devlin found X presented a realistic risk of transmission of HIV to the woman and was obligated to disclose his HIV status prior to sexual contact.

She said consent was invalidated by his failure to disclose that information and that there was a significant risk of bodily harm.

“(She) would not have consented to having sexual intercourse had she known of his HIV‑positive status,” the court said.

A Chilliwack man was sentenced to four years in prison on Friday (June 25) for repeatedly having sex with a woman while he was HIV-positive and not informing her.

X was convicted on Feb. 5, 2020 by Justice Martha Devlin in BC Supreme Court in New Westminster of one count of aggravated sexual assault under section 273 of the Criminal Code. Aggravated sexual assault is defined as sexual assault that “wounds, maims, disfigures or endangers the life of the complainant.”

The now 59-year-old X was in a relationship with R.G., the complainant who cannot be named due to a publication ban. Starting in late summer 2016, the two began engaging in sexual activity, according to evidence presented by Crown counsel John Lester.

R.G. tested positive for HIV while in an institution after she was certified under the Mental Health Act in late January 2017 for about a month.

X was also alleged to have been “physical” with R.G. and the sex got rougher and rougher leading to charges of sexual assault and assault, but he was acquitted of those charges because of the credibility of the complainant’s testimony due to her mental state.

X argued that R.G. was aware of his HIV status, but he was not deemed credible, at least in part because when the victim found out she too was HIV positive, she thought it was a death sentence. Lester said, and the court accepted, that this was not the response of someone who was consensually having sex with an HIV-positive person.

Consensual sex with a person who does not disclose their HIV status meets the test of endangering the life of the complainant, and the consent is vitiated – rendered legally invalid – because of the non-disclosure.

Crown counsel was asking for more time in jail, but X was sentenced to four years in prison in BC Supreme Court in New Westminster on June 25.

That global sentenced minus timer served means X was given almost three years, or 1,099, more to serve.

Lester was no longer acting as Crown in the case as he was removed because of an allegation of a threat against the Crown. X is now facing a decision in that case on July 27 in provincial court in Surrey.

X was in the news in early 2020 this year as the owner of a dog accused of attacking multiple people in the Columbia Valley.

S.G. convicted in BC Supreme Court after he did not disclose status to sexual partner.

A Chilliwack man was convicted of aggravated sexual assault in BC Supreme Court on Wednesday for repeatedly having sex with a woman while infected with HIV without her knowing about his HIV status.

S.G. was convicted by Justice Martha Devlin in New Westminster of one count of aggravated sexual assault under section 273 of the Criminal Code. Aggravated sexual assault is defined as sexual assault that “wounds, maims, disfigures or endangers the life of the complainant.”

Consensual sex with a person who does not disclose their HIV status meets the test of endangering the life of the complainant, and the consent is vitiated – rendered legally invalid – because of the non-disclosure.

The now 58-year-old G. was in a relationship with R.G., the complainant who cannot be named due to a publication ban. Starting in late summer 2016, the two began engaging in sexual activity, according to evidence presented in BC Supreme Court in New Westminster by Crown counsel John Lester.

R.G. was tested for HIV in November of 2016 and was negative. She was then certified under the Mental Health Act in late January 2017 for about a month. It was early in that stay at an institution that a blood test was done, and she was deemed to be HIV positive.

Crown called numerous doctors as witnesses, some who explained the way HIV is transmitted and when it is detected in a test after transmission.

There were also allegations by R.G. that the sex itself did get physically rougher and rougher leading to further charges of sexual assault and assault, but G. was acquitted of those charges because of the credibility of the complainant’s testimony due to her mental state.

G. argued that R.G. was aware of his HIV status, but he was not deemed credible, at least in part because when the victim found out she too was HIV positive, she thought it was a death sentence.

Lester said, and the court accepted, that this was not the response of someone who was consensually having sex with an HIV-positive person.

Contracting HIV in such a case is not even necessary for a conviction of aggravated sexual assault, rather a “realistic possibility” of transmission is enough.

An oft-cited case of R v Mabior from the Supreme Court of Canada involved a man who had sex with nine complainants while HIV positive and while failing to disclose. In convincing Mabior, the court revisited a test from a 1989 decision, R v Cuerrier that found “A person may be found guilty of aggravated sexual assault under sec. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted.”

Justice Devlin convicted G. in court on Feb. 5, 2020. He remains out of custody, and a sentencing date is set for April 3 in BC Supreme Court in New Westminster.

The case calls to mind that of former Chilliwack and Abbotsford resident B.C. who was charged with aggravated sexual assault in a dozen cases for having sex with women while HIV-positive.

In 2018 all charges against C were dropped, and last August he filed a lawsuit against the province of B.C. and 10 members of the Mission RCMP.