R.+c.+Williams

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Facts: Complaint and respondent engaged in sexual affair for 18 months, included acts of vaginal intercourse and fellatio. Condoms were used occasionally but complainant took less care after respondent told her that he’d had a vasectomy. Relationship began in June 1991. Unknown to complainant, respondent went for HIV testing on October 16, 1991. He was told on November 15 1991 that he had tested positive. He was counseled 3 times, by doctors, nurses etc. to disclose his status to sexual partners. Respondent chose not to inform complainant. Complainant was tested in November 1991, still unaware of respondent’s status. She tested negative and told the respondent. Their encounters ended and she was re-tested after experiencing some symptoms of HIV/AIDS, told she was positive on April 15. 1994. ======

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History: Respondent charged with aggravated assault, criminal negligence causing bodily harm and common nuisance. Trial judge rejected charge of criminal negligence. Court of Appeal dismissed appeal for conviction of nuisance. Majority of C.A. reinforced charge of assault, amended it to attempted aggravated assault. ======

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Issue: Can an accused who fails to disclose that he is HIV-positive be convicted of an aggravated assault endangering life by engaging in unprotected sex with a complainant who, at the time of the alleged assault, could herself have been infected with HIV? ======

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Attributes : 37. A single act of unprotected vaginal intercourse carries a significant risk of HIV transmission/ 38. To date, there is no cure for HIV infection. The current approach to treatment is to use a combination of drugs to try and control the virus. Even with treatment, HIV infection can still lead to devastating illnesses with fatal consequences. ======

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 * Expert Evidence ** : Dr. Bowmer had counseled respondent. When asked if one HIV+ person could re-infect a HIV+ partner, he stated that HIV reproduces quickly and can produce a mutant, drug-resistant strain. This means that safe sex is important even if both parties are positive. ======

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- Crown is dissatisfied with attempted aggravated assault; believes he should be charged with aggravated assault. //Mens rea// for aggravated assault= mens rea for assault + objective foresight. Here, mental element of assault is proved BARD. ======

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- Prosecution here is based on consequences of action. Difficult in this case because of “window” of uncertain duration. Respondent uses this to his advantage, arguing: 1. that the complainant consented to unprotected sex, and 2. that the Crown cannot prove that sexual conduct endangered complainant’s life. ======

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-In this case, we do not know of the respondent’s knowledge of his condition prior to November 15. It is possible the complainant was infected as early as August 1991. Her body may not have been producing the indicative antibodies at this time. There is a reasonable doubt as to when she became infected. ======

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At some point, //actus// // reus // and //mens rea// must coincide: ere, however, before November 15, 1991, there was an endangerment but no intent; after November 15, 1991, there was an intent but at the very least a reasonable doubt about the existence of any endangerment. Therein lies the essence of the Crown’s problem in this case. ======

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“Aggravated” in aggravated assault comes from consequences. Proof of endangerment of complainant’s life is critical to prove aggravated assault. [example here is: if a man fires a gunshot at a sleeping person intending to kill him, he will not be held guilty if person is found to have already died of natural causes]. ======

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// Refutation of Paradox // : Trial and Appeals judges concerned that in Cuerrier, accused did not infect plaintiff and was held guilty of aggravated assault, whereas here accused is acquitted. However: In Cuerrir, accused was deceitful about HIV+ status from start of relationship, whereas here, complainant at start of relationship was engaging in unprotected sex with someone who did not know he was HIV+. ======

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- Failure to show endangerment of life is fatal for prosecution of aggravated assault, but not for attempted aggravated assault. Here the //actus// // reus // of aggravated assault “is present in an incomplete but more-than-merely-preparatory way” (para. 66) ======

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Case was argued on basis of Agreed Statement of Facts submit by Bowmer. Not a great deal of exploration of question of potential medical consequences of unprotected sex between HIV infected partners. ======