Décision

Wilcox c. R.					2014 QCCA 321
COURT OF APPEAL
CANADA
PROVINCE OF QUEBEC
REGISTRY OF			MONTREAL
No:	500-10-005019-110
(500-01-006624-073)
DATE:	20 FÉVRIER 2014
CORAM:		THE HONOURABLE		PIERRE J. DALPHOND, J.A. ALLAN R. HILTON, J.A. DOMINIQUE BÉLANGER, J.A.
JAMES STEVEN WILCOX
APPELLANT - Accused
v.
HER MAJESTY THE QUEEN
RESPONDENT - Prosecutrix
JUDGMENT

[1]           THE COURT: On the appeal of James Steven Wilcox from the written judgment of the Court of Quebec (the Honourable Judge Louis A. Legault) rendered on September 12, 2011 (2011 QCCQ 11007) convicting him of the offence of aggravated sexual assault contrary to paragraph 273(1)(2)(b) Cr.C.;

[2]           For the reasons of Dalphond, J.A., with which Bélanger, J.A. concurs:

[3]           DISMISSES the appeal.

[4]           For other reasons, Hilton, J.A. would have allowed the appeal, set aside the verdict of conviction and ordered a new trial on the ground of law that the trial judge erred in the analytical process set out in R. v. W.(D.), [1991] 1 S.C.R. 742, and the further ground of law that he failed to analyse the evidence as a whole relating to an ultimate issue as to whether or not there was a reasonable doubt as to the guilt of the appellant (R. v. Morin, [1992] 3 S.C.R. 286, at p. 296).

 

		PIERRE J. DALPHOND, J.A.
		ALLAN R. HILTON, J.A.
		DOMINIQUE BÉLANGER, J.A.
Mtre Jonathan Gordon
BORO, POLNICKY, LIGHTER
For the appellant
Mtre Dennis Galiatsatos
DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS
For the respondent
Date of hearing:	June 10, 2013

REASONS OF DALPHOND, J.A.

[5]           The appellant was charged with aggravated sexual assault (s. 273 Cr.C.) and aggravated assault (s. 268 Cr.C.). At trial, the appellant was found guilty on the first charge; the second charge was stayed.

[6]           Before us, the appellant raised various grounds of appeal, which are dealt with comprehensively by my colleague Justice Hilton in his attached reasons. I agree with his fine analysis of the first three grounds. However, for the reasons that follow, I respectfully beg to differ with regard to the fourth.

THE ELEMENTS OF THE OFFENCE

[7]           In R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para 25, the Supreme Court of Canada determined that the actus reus of the offence of sexual assault comprises three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. The absence of consent, however, is purely subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred (Ewanchuk, supra at para 26).

[8]           In the case of aggravated sexual assault, the actus reus comprises a fourth element, namely: the need to prove wounding, permanent injury (maiming), disfigurement, or endangerment to the life of the complainant (273(1) Cr C). The HIV virus can lead to a devastating illness with fatal consequences and thus could constitute an aggravated sexual assault. This explains why most charges related to HIV are of aggravated sexual assault.[1] As for the mens rea of aggravated sexual assault, in addition to the elements associated with sexual assault, the Crown must establish objective foresight of the risk of bodily harm (R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584; R. v. Williams, 2003 SCC 41, [2003] 2 SCR 134 at para 22, itself citing R v Godin, [1994] 2 SCR 484 at 485, and Cuerrier, supra at para 95).

[9]           That being said, with regard to the absence of consent, an element of the actus reus applying to all forms of assault, both sexual and non-sexual, two situations are possible: (i) the complainant expressed no consent to the touching, and (ii) a consent was given but is found to be vitiated.

[10]        In the first situation, the Crown has to establish beyond a reasonable doubt the lack of consent.

[11]        However, when dealing with a case of consent vitiated by fraud, in order to prove a sexual assault, simple or aggravated, the Crown must always establish two elements in order to establish an absence of consent: a dishonest act and a deprivation (Mabior, supra at paras 5, 12 and 57, citing Cuerrier, supra).

[12]         In an HIV case, the Crown must therefore prove that the accused failed to disclose his/her HIV status[2] (the dishonest act), and that the complainant would have refused to engage in unprotected sex with the accused if he/she had been properly informed (deprivation) (Mabior, supra at para 12). In addition, and because the operative offence in an HIV case is one of aggravated sexual assault, the Crown must show that the sexual contact posed a significant risk of, or caused, actual serious bodily harm to the complainant (Mabior, supra at para 104).

[13]        Cuerrier established that there exists a positive duty on the person infected and aware of his/her situation, to disclose his/her HIV status if there is a “significant risk of serious bodily harm” to the complainant (Cuerrier, supra at para 127). Mabior then specified that this “significant risk” would be met where there is a “realistic possibility of transmission.” (Mabior, supra at para 84). Further, this realistic possibility is only negated - and correspondingly no duty to disclose one’s HIV status exists - where the accused has a low level of HIV infection (viral load) and where adequate prophylactic protection is used during the intercourse (Mabior, supra at para 104).

[14]        Therefore, a complainant’s consent to sexual intercourse can properly be found to be vitiated by fraud if: (1) the accused’s failure to disclose his HIV-positive status is intentional and, (2) results in deprivation by exposing the complainant to a realistic risk of HIV transmission. The key distinction between sexual assault and aggravated sexual assault in cases of HIV-non disclosure is therefore the consequence of the deprivation. Whereas sexual assault requires no such consequence per se, aggravated sexual assault necessarily implies the presence of additional risks or sequelae compounding the consent to sexual intercourse fraudulently obtained.

[15]        In the case at bar, the evidence shows beyond a reasonable doubt that, at the time of the first intercourse with the complainant in the summer of 2005, the appellant had a dangerous viral load, was fully aware of his HIV status since 2003 and chose not “to disclose that dirty little secret”. This failure to disclose was dishonest according to the law.

[16]        The appellant also acknowledged that he chose to remain silent when he and the complainant engaged in their first instance of unprotected sexual intercourse, whenever it was. This resulted in deprivation since the Crown proved that the dishonest act had the effect of exposing the complainant to a significant risk of serious bodily harm i.e. contracting HIV as a result of engaging in unprotected sexual intercourse.

[17]        The Crown proved these elements beyond a reasonable doubt; in fact, most of them were admitted by the appellant in his own testimony.

[18]        However the appellant is alleging that his failure to disclose his HIV positive status is immaterial because the complainant would, according to him, have consented anyway. The complainant affirmed otherwise and the judge believed him on that very issue.

The 4^th Ground of Appeal: The Issue of the Complainant’s Credibility

[19]        In order to obtain a conviction under ss. 265(3)(c) and 273(1) Cr C, the Crown had to prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with the appellant if he had been advised that the latter was HIV-positive, “as unlikely as that may appear” (R. v. Cuerrier, supra, para. 130).

[20]        The complainant testified to that effect and the trial judge believed him.

[21]        As was said by the Supreme Court in Ewanchuk, supra, at para 29: “[w]hile the complainant's testimony is the only source of direct evidence as to [his or] her state of mind” at the time of the alleged sexual assault, “credibility must still be assessed by the trier of fact in light of all the evidence.”

[22]        In his reasons, my colleague Justice Hilton disputes this credibility finding by the trial judge. According to him, the trial judge failed to consider the defense’s evidence that the complainant continued to have unprotected sexual intercourse with the appellant once he was made aware of his HIV status. Had the trial judge considered it, the evidence could have raised a reasonable doubt as to the complainant’s affirmation that he would not have engaged in sexual activity with the appellant if told of the latter’s HIV status (see paras. 125 and 127).

[23]        My reading of the trial judge’s reasons as a whole, in the context of the evidence, the arguments of the parties and the trial, leads me to conclude that there is no such deficiency. The trial judge’s credibility finding is entitled to a high degree of deference (R. v. Vuradin, 2013 SCC 38, [2013] 2 SCR 678 para. 12) and should, therefore, remain undisturbed.

[24]        In his reasons, the trial judge explicitly dealt with the defense’s allegations of unprotected sexual intercourse after disclosure. In fact, it is obvious from the judgment, that the trial judge found the defense’s evidence more convincing that the complainant’s denial about a continued relationship after disclosure:

[195]    A slight doubt surges whether the dildo penis penetration happened in or after the month of July 2011. The Court cannot set aside a light possibility that both kept having unprotected sexual intercourses. Even if unprotected intercourses would objectively surprise, in fact, it is not impossible. Coherence in sexuality is not always evident. The magic thinking about the safety of withdrawal before ejaculation in unprotected anal sex might have to do with that.

…

[210]    Throughout he always said he had no unprotected intercourse with anyone save the July one with the accused and further that he had none after July with the accused. On that a doubt remains because of his declaration as to ongoing sex and wanting to keep dating and because of the frailties and contradicted evidence of complainant in the months of August and October 2005.

…

[212]    Complainant’s behaviour is believed to show ongoing dating. In the course of this lack of credibility of complainant as to dating, a doubt surges regarding ongoing sex practises.

[213]    Ongoing sexual intercourses with the accused until October is a possibility that cannot be ruled out. Complainant said so in a question to the accused in his recorded 2006 interrogator as he says in a preamble that they kept having sex and that they wanted to keep on dating.

…

[218]    The Court cannot come to a definite conclusion that the fatal unprotected intercourse dated to July or thereafter although there is a very strong possibility with the symptoms that it was caused in July before disclosure.

…

[221]    Indeed the reasonable possibility cannot be set aside that they kept on having that protected and unprotected sex and that the May and June 2006 testing was passed so late as a consequence of a later than July traumatic sexual intercourse with the accused. It could go both ways time wise. But there is evidence that cannot set aside as complainant has been contradictory and untrustworthy and vague and confused on some of the evidence after July 2005 to August 2005.

[25]        However for the trial judge, whatever the motives of the complainant to forget or hide this aspect of the relationship, he remained credible in his assertion that he would not have engaged in the first instance of unprotected sexual intercourse had he known of the appellant’s HIV-positive status:

[204]    These doubts are raising the question of complainant engaging in sexual partnership and sexual intercourses with the accused from August on. Complainant’s trustworthiness lacks specifically there and not on his absence of unprotected sexual intercourse with others and not on his unwillingness to engage sexually with someone HIV infected in July 2005.

(…)

[229]    Prosecution had to establish beyond a reasonable doubt that the accused’s acts endangered the life of complainant as there was no disclosure, no implicit consent and as complainant would never have accepted to have sexual intercourse with the accused if he had been informed and the significantly unprotected sexual intercourse at the accused residence (section 268 (1) and 272 of the Criminal Code).

[230]    Complainant was not infected before meeting the accused. There is evidence to so believe beyond a reasonable doubt that complainant was not then infected. Complainant and the accused engaged in an unprotected sexual intercourse at the accused residence that was significantly risky according to the ruling of Cuerrier. The guilt of the accused is established by the simple exposure of complainant to a significant risk of HIV infection before any disclosure was made, as complainant would never have entered a sexual intercourse with the accused if there had been disclosure by the accused of his HIV infection.

(…)

[238]    The Crown had to show that complainant would have refused to engage in unprotected sex with the accused if he had been advised that the accused was HIV positive. The evidence is to the effect that complainant would not at all have accepted to have any sexual intercourse with the accused if he had been advised. Complainant is believed and trustworthy.

[26]        Implied in the judge’s reasoning is that the situation is different once a person has been exposed and possibly contaminated.

[27]        This is a reasonable assumption, supported by the appellant’s own email, in which he wrote: “I should have recognized that you were vulnerable and not thinking correctly”. In other words, one cannot infer from the complainant’s behaviour after likelihood of being HIV-positive any willingness to engage in risky intercourse while HIV-negative.

[28]        This makes sense when considering other parts of the evidence.

[29]        Firstly, before the complainant met with the appellant, it was conceded that the complainant was HIV-negative despite his sexual practices, including regular visits to gay saunas for sexual satisfaction. One can thus infer that he was taking precautionary measures, as he affirmed. This inference is equally supported by the fact that protection was used during the first instance of sexual intercourse between the parties, notwithstanding the disagreement as to whether the condom was purchased or obtained for free by the complainant at the Oasis Sauna.

[30]        Secondly, it was uncontested that when the complainant learned of the appellant’s HIV positive status of the appellant, he was very worried about his situation and sought medical exams and a test as soon as September 2005. The subsequent testing undertaken by the complainant in May and/or June 2006 is also inconsistent with the attitude of an individual unconcerned with his health, and with the risks inherent in protected or unprotected sexual intercourse with an HIV-positive individual.

[31]        Thirdly, the letters exchanged by the complainant with the appellant confirm that at no time the former was ready to take the initial risk or that he ever was a “bug chaser”.

[32]        In other words, the evidence confirms that the complainant did care about his health.

[33]        In my view, the trial judge’s finding that the complainant is credible when he affirmed that he would not have engaged in his first risky sexual practice with the appellant had he known of the latter’s HIV status is congruent with other parts of the evidence and quite reasonable in the circumstances.

[34]        Therefore, I am of the view that the conviction can be reasonably supported by the evidence as a whole and that the Court cannot interfere with the trial court's verdict relying on the fourth ground of appeal.

[35]        As for the sentence, though light for an aggravated sexual assault, there is no appeal by the Crown.

THE CONCLUSION

[36]        For these reasons, I propose to dismiss the appeal.

	PIERRE J. DALPHOND, J.A.

REASONS OF HILTON, J.A.

I

INTRODUCTION

[37]        James Steven Wilcox appeals his conviction by a judge of the Court of Quebec for aggravated sexual assault endangering the life of the complainant G. M. between July 1 and August 31, 2005,[3] contrary to paragraph 273(1)(2)(b) Cr.C.[4] That provision is to the following effect:

273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.   (2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable   […]   (b) in any other case, to imprisonment for life.

273. (1) Commet une agression sexuelle grave quiconque, en commettant une agression sexuelle, blesse, mutile ou défigure le plaignant ou met sa vie en danger.   (2) Quiconque commet une agression sexuelle grave est coupable d’un acte criminel passible :   […]   b) dans les autres cas, de l’emprisonnement à perpétuité.

[38]        The endangerment alleged, which the trial judge found to exist, was that Mr. Wilcox, who to his knowledge was HIV positive, exposed the complainant to the HIV virus without his consent by engaging in unprotected anal intercourse with him. The complainant, who was HIV negative at the time, was later found to be HIV positive.

[39]        The main issue at trial, which is revisited in appeal, was whether the trial judge properly applied the reasoning of the Supreme Court of Canada in R. v. Cuerrier[5] to the facts before him. In that case of aggravated sexual assault, the Court held that a person's consent to engage in sexual activity is vitiated if it is obtained by fraud. The fraud in Cuerrier was the participation of complainants in sexual activity with the accused when he was HIV positive without that disclosure having been made to them. The Court held that when it is alleged that a complainant's consent was obtained by fraud, the Crown must also establish beyond a reasonable doubt that if the disclosure had been made, the complainant's consent to the sexual activity would have been withheld.

[40]        Subsequent to the judgment of the Court of Quebec that Mr. Wilcox has appealed, the Supreme Court again considered the component factors of aggravated sexual assault in R. v. Mabior.[6] As was the case in Cuerrier,[7] the accused had engaged in consensual intercourse with several women without, however, informing them that he was HIV positive. The evidence was unclear as to the extent to which the accused used a condom with each of the nine complainants, and none of them contracted the HIV virus as a result of their sexual activity with him. Eight of the complainants testified that they would not have consented to intercourse with the accused had they known he was HIV positive, an assertion that, unlike Mr. Wilcox' defence in this case, Mr. Mabior did not dispute.[8] Rather, Mr. Mabior's defence was that at the relevant time he was under treatment for his condition, he was either not infectious or presented a low risk of infection such that he should be acquitted of the charges against him.

[41]        Insofar as relevant to this appeal, McLachlin, C.J. said this on behalf of the Court:

[104]    To summarize, to obtain a conviction under ss. 265(3)(c) and 273, the Crown must show that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. Failure to disclose (the dishonest act) amounts to fraud where the complainant would not have consented had he or she known the accused was HIV-positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm (deprivation). A significant risk of serious bodily harm is established by a realistic possibility of transmission of HIV. […]   [Emphasis added.]

[104]  En résumé, pour obtenir une déclaration de culpabilité sous le régime de l’al. 265(3)c) et de l’art. 273, le ministère public doit démontrer que le consentement du plaignant aux relations sexuelles est vicié par la fraude de l’accusé concernant sa séropositivité. L’omission de révéler (l’acte malhonnête) constitue une fraude lorsque le plaignant n’aurait pas donné son consentement s’il avait su que l’accusé était séropositif et lorsqu’un contact sexuel présente un risque important de lésions corporelles graves ou inflige effectivement de telles lésions (la privation).  La possibilité réaliste de transmettre le VIH établit le risque important de lésions corporelles graves.   [soulignage ajouté]

[42]        The details of the relationship between Mr. Wilcox and the complainant were the subject of extensive evidence, not only from them, but also from friends of Mr. Wilcox who witnessed their interaction. The Crown called expert evidence to address the issue of how the virus can be transmitted, taking account of the nature of the sexual relations in which the parties engaged. For his part, Mr. Wilcox called expert evidence related to the culture of the homosexual community in Montreal, particularly with respect to those who attend saunas where the explicit objective is to find a partner with whom to have sexual relations. The trial judge maintained the Crown's objection to the admissibility of this testimony. Finally, Mr. Wilcox called a witness from the sauna where Mr. Wilcox and the complainant first met to contradict some of the latter's factual assertions concerning the availability of condoms.

[43]        Some of the evidence is uncontradicted, while important periphery details and whether the complainant's consent was vitiated are the subject of starkly conflicting evidence that go to the reliability and credibility of the complainant and Mr. Wilcox. The trial judge ultimately resolved the contradictions in favour of the Crown's position and held that the offence of aggravated sexual assault had been proved beyond a reasonable doubt. I propose to first record the uncontradicted facts before identifying those that were the subject of conflicting testimony.

II

UNCONTRADICTED FACTS

[44]        Mr. Wilcox is an American citizen and resident who nevertheless spends a significant time each year in Montreal because of the more opened-minded approach to homosexuality he finds here. He learned in September of 2003 that he was HIV positive, but continued to maintain an active sex life.

[45]        In the summer of 2005, the complainant was HIV negative.

(i) The parties' first encounter

[46]        One evening that summer, Mr. Wilcox and the complainant went separately to the Oasis Sauna in Montreal with the explicit objective of engaging in sexual activity with someone they would meet there. They did now know each other.

[47]        Mr. Wilcox rented a small room where he could see passers-by and they could see him. His purpose was to put himself on display to interest someone in having sex with him. One such person was the complainant, who Mr. Wilcox observed to be of Latin origin and who he fancied. After Mr. Wilcox uttered a Spanish-language greeting, the complainant entered the room, removed the towel he had wrapped around his waist, and proceeded to join Mr. Wilcox, now similarly unattired, on a table where they began to kiss and caress.

[48]        The complainant soon performed an unprotected act of fellatio and anal rimming on Mr. Wilcox, who responded by performing anal intercourse on the complainant while using a condom, but without ejaculating inside him. When the two men parted, they took showers, and met at the entrance to the premises. They exchanged telephone numbers, and discovered they lived near each other. Mr. Wilcox drove the complainant home.

[49]        Mr. Wilcox did not disclose his HIV positive status to the complainant either prior to or after the intercourse.

(ii) The parties' subsequent sexual activity

[50]        Later that summer, while the complainant was at Mr. Wilcox' residence, they again had a sexual relation. On this occasion, Mr. Wilcox first inserted a dildo into the complainant's anus, and then, with the dildo still in place, inserted his erect penis to effect double penetration. Unlike their first act of intercourse, however, Mr. Wilcox did not use a condom, although, like their first encounter, he did not ejaculate inside the complainant.

[51]        At some point after this event, Mr. Wilcox disclosed his HIV positive status. The complainant tested HIV negative in September of 2005, but was found to be positive in May of 2006. The complainant acknowledges that Mr. Wilcox never ejaculated in him during the anal intercourse they shared.

(iii) Subsequent events

[52]        The complainant was distressed to learn that Mr. Wilcox had not disclosed his HIV positive status before engaging in unprotected intercourse. They continued to remain friendly without, according to the complainant, engaging in any further sexual contact.

[53]        Mr. Wilcox testified to the contrary. He stated that he and the complainant continued to engage in both protected and unprotected anal intercourse on a regular basis until the fall of 2005.[9]

[54]        It is not disputed, however, that after he discovered in 2006 that he was HIV positive, the complainant attempted to elicit an acknowledgement from Mr. Wilcox that he was the cause of his infection. He did so by surreptitiously recording a conversation between the two of them as they were walking together.[10] In addition, after the complainant had decided to move from Montreal to Ottawa, he sent the following email to Mr. Wilcox on October 14, 2006:

Hello Jim.

I know it has been a bit peinful for both of us lately, but this-email is intended to fill our hearts with goodness.

I know it has been hard for us to deal with my new situation "being HIV", specialy  given the circunstances for that to happen and overall when I let you know that it was you the person who passed it on me as well as you did to your recent boyfriend. I do not want to remind you those awful moments you experienced with him when he got mad at you on the phone since you had pased it on to him too. I hope he did not commited suicide as you thought he was going to, according to our last conversation at second cup on Park Av. that day.

No bad feelings from my side Jim, no harsh words neither. I want to leave you in harmony, happy of having gone trough this experience which made me learn very much about human behaviour and myself. Must of all, I want to leave showing you that forgiveness is possible and really works.

I wanted you to know that I am already almost taking off from Montreal to settle in Ottawa as I told you a while ago; so no bad feelings from my side again. Wish me luck though, Jim.

I wanted also to show you something I have accomplished. It's a mural that I will leave here as souvenir and special gift for people of Montreal. I spent as you know, all this time working as an interpreted, and in [Company A]. I am about to put the lasts touches. By then I will be already heading to my new future.

I wish you luck in your life.

Jim! I am gonna call you before leaving since I would like to see you at least for a coffe or a nice simple meal in a bistro. I would also like to give some of my latest. And hopefully one of this days you will be able to come and visit me there.

One thing that's left Jim and I'd rather talk about here and now, is that no matter what I forgive you and that will set you free from your guiltness if ever you felt something like that. If you please could apologize for having contaminated me, with your own words, it will help me not to think about it anymore and go on with my life and in the near future see you as a part of my life as well. I have felt very sad all this time just because I never heard from your side any excuse, nor sympathy you have shown to me in that regard.

That is all I am asking you for me to go ahead and let you go to. You know how important it is to let things go sometimes.

Well, my dear friend I hope you'll do well and I will be calling you soon.

Hugs

G..

 

[Transcribed as written.]

[55]        Mr. Wilcox' reply on October 17 is to the following effect:

Dear G.,

This is difficult email for me to compose. After that day on my couch when I told you that I was HIV+, I always felt guilty having unprotected sex. Each time I kept thinking that you must think that you are already positive. Looking back at the situation, I should have recognized that you were vulnerable and not thinking correctly.

All this is ancient history; I cannot change the decisions that each of us made. Just like I cannot change what happened between me and Daniel. The one thing I have learned is that I am responsible for my actions just like everyone else is responsible for their personal actions.

I hope that in the future I can accept my HIV status in my daily life so that I it is not a dirty secret that I feel like I am hiding. I do have any other sexual partners, I plan to be totally honest and practice safe sex.

If I did not say this before, I am sorry. I am sorry. I am sorry that any other human being has to be burdened by this disease. I pray for the day that this scourge is removed from our lives.

There is one thing you said in you last phone call that I wanted to correct. Maybe I was not clear at the time, but I never said that I did not want to date you because you did not have a great job or material possessions. You are a very decent and honest person with a great sense of humor, a highly educated lawyer and intelligent. These are great characteristics; however, I remember saying that I wanted someone who has a strong passion in their life… ideally expressed by being ambitious and aggressive in ones career. Maybe I misjudged you, but you always described your perfect life in Switzerland by how you spent your free time traveling, dinners with friends, i.e., quality of life is more important than financial success/career.

I wish you all the success in the future… in both your personal life and in your career. Please do call so we can get together before you leave for Ottawa. You are the type of person I want to be friends with and something tells me that we will always be a part of each others livers.

Your friend,

Jim

 

[Transcribed as written.]

[56]        As alluded to in the email exchange when he referred to "Daniel", Mr. Wilcox infected a subsequent sexual partner in Brazil to whom he also had not disclosed his HIV positive status before engaging in intercourse.

(iv) Causality

[57]        The expert evidence of Dr. Richard Morissette established the chronic nature of an HIV infection, although it is controllable with medication. He explained that transmission can occur through anal intercourse even when there is no ejaculation because of the emission of pre-ejaculatory fluids, and that the simultaneous insertion of a dildo into the anus enhances the risk of transmission. Accordingly, the use of a condom in such circumstances is extremely important to avoid the transmission of the virus.

III

DISPUTED FACTS

(i) The parties first encounter

[58]        The parties do not agree on the timing or the details of their first sexual encounter, save as I have described them in paragraphs [46] - [48] above.

[59]        The complainant was adamant that it occurred at a date he cannot pinpoint in the latter part of July 2005. By reference to his telephone records, however, Mr. Wilcox was able to situate it prior to July 6, since the complainant telephoned him that day, and he had not known the complainant before meeting him at the sauna.

[60]        The complainant affirms that the only sexual activities in which they engaged are the act of unprotected fellatio and anal rimming he performed and the anal intercourse in which he was the receptive partner. He also contends that he purchased two condoms upon entering the premises, one of which he gave to Mr. Wilcox to use during intercourse.

[61]        Mr. Wilcox explained that the complainant was in error when he affirmed that he would have purchased two condoms upon entering the premises, since they are distributed free of charge. To that end, he also called a witness from the Oasis Sauna who confirmed Mr. Wilcox' testimony in this respect. The complainant would have apparently confused the need to purchase condoms with a different gay sauna in Montreal. Moreover, the condom Mr. Wilcox used at the Oasis Sauna with the complainant was one that he had been given when he entered the premises, as opposed to one that the complainant would have given him.

[62]        Next, Mr. Wilcox asserts that after the unprotected oral sex and the protected intercourse between them, a second round of intercourse occurred. This would have taken place as the complainant straddled him as he lay on his back. The complainant would have reached behind himself, stimulated Mr. Wilcox' penis with his hand and inserted it into his anus. This intercourse, which the complainant initiated, was unprotected, although Mr. Wilcox did not ejaculate in the complainant's anus.

[63]        I note in passing that the trial judge mentions at paragraph [156] of his judgment that there were two rounds of protected anal intercourse at the sauna, the first initiated by the complainant during which the accused would have been the receptive partner, and the second initiated by the accused during which the complainant would have been the receptive partner. The parties agree this is a clear error of fact by the trial judge. Their respective positions remain as follows: the complainant states there was only one round of protected anal intercourse; Mr. Wilcox affirms there were two such events, one of which was protected, the other of which the complainant initiated was unprotected.

(ii) The parties' subsequent sexual activity

[64]        According to the complainant, shortly after their meeting at the sauna, Mr. Wilcox invited him to visit his apartment on a Saturday. They each had coffee, and the complainant left after an hour or so to complete his Saturday errands, without any sexual activity having taken place.

[65]        At their next meeting in the first week of August, the complainant says that Mr. Wilcox invited him to his apartment for dinner. He proposed that the complainant sleep over with him, an offer that the complainant accepted. No sexual activity occurred until the early hours of the morning. After caressing and hugging, Mr. Wilcox would have taken a two-headed dildo measuring about 30 cm, which also featured plastic testicles, from a bedside table. With the complainant lying on his back and Mr. Wilcox in front of him, he inserted the dildo into his anus, which was then followed by the insertion of his unprotected erect penis to achieve double penetration. As the dildo remained in place without being held, Mr. Wilcox' thrusts rapidly led to the complainant reaching orgasm. Mr. Wilcox ejaculated outside the anus after withdrawing his penis.

[66]        When the complainant went to the bathroom to clean up and get ready to leave for work, he says he observed a collection of blood in the toilet bowl. He also noted on two occasions later in the day that he was bleeding from the rectum. He later sought medical attention for this as well as a general feeling of not being well, and was referred to the emergency room of the Hôpital Hôtel-Dieu where blood tests revealed he was HIV negative.

[67]        At the end of that workday, he called Mr. Wilcox and arranged to meet him at his apartment to discuss the bleeding he was experiencing. The complainant asked him whether he had any sexually transmissible diseases, and Mr. Wilcox answered that he was HIV positive. The complainant says that answer drove him into a state of shock and enormous rage that was of such intensity that he associated it with a heart attack. Mr. Wilcox immediately reacted by telling him he thought the complainant was also HIV positive. He tried to reassure the complainant that he had never ejaculated in him, and that he should be tested for the virus. When the complainant asked why he had not revealed his HIV positive status, Mr. Wilcox would have answered, "Because I'm fed up of being treated as shit."

[68]        By referring to his telephone records, however, Mr. Wilcox says that on or about July 20 or July 21, the complainant would have telephoned him. They agreed to meet at a Second Cup outlet on Milton Avenue in the afternoon for tea and coffee, and then left for Mr. Wilcox' nearby condominium apartment that was in the process of renovation. After touring the areas of the apartment that had been renovated, they engaged in anal intercourse during which Mr. Wilcox used lubricant, but not a condom. He ejaculated after withdrawal. This would have been their second sexual encounter after the one at the Oasis Sauna. The complainant denies the occurrence of this sexual activity, as well as the conversation between them that is described below.

[69]        Mr. Wilcox says a discussion then ensued about the fact they were having unprotected intercourse. The complainant would have told him he did not know his HIV status and that he had in the past engaged in unprotected intercourse at the sauna. Mr. Wilcox was concerned that since he was HIV positive, there was a possibility of infection from cross-strains.

[70]        During this discussion, Mr. Wilcox says he disclosed his HIV positive status. The complainant did not have a negative reaction to this disclosure, but rather one of sympathy. The parties agreed to continue to have both protected and unprotected sexual relations on the condition that Mr. Wilcox would not ejaculate inside the complainant, since the latter preferred to be the receptive partner. It is not disputed, however, that Mr. Wilcox never ejaculated in the complainant's anus, and that the complainant was always the receptive partner.

(iii) Subsequent events

[71]        According to the complainant, the parties continued to see each other during the summer and fall of 2005, but no further sexual activity ever took place between them after the incident involving double penetration. He vaguely recalled being invited to Mr. Wilcox' apartment on two separate occasions for dinners with friends of the latter, but he could not remember much about them. He also confirmed having walked on Mount Royal with Mr. Wilcox, and having had meals with him at restaurants from time to time, but without there having been any sexual activity. He testified that his ulterior purpose in maintaining contact with Mr. Wilcox was to be able to locate him in the event he was found to be HIV positive.

[72]        Mr. Wilcox is clear they continued to see each other on a social basis for dinners at restaurants and the like. In fact, he rebuffed the complainants' desire to marry him, as he did not consider him to be an appropriate long-term partner. Their interaction included unprotected anal intercourse after the complainant was aware of his HIV positive status, which always occurred at Mr. Wilcox' apartment.

[73]        Two such relations stand out in Mr. Wilcox' memory.

[74]        After the parties met to go hiking on Mount Royal on the afternoon of August 10, it began to rain heavily as they were returning to his apartment. When they finally arrived, they were soaking wet, but undressed and had anal intercourse that Mr. Wilcox remembers particularly because of its intensity, which was enhanced by the noise of loud thunder. Mr. Wilcox testified that he was able to be precise about the date of August 10 because he had verified with Environment Canada that there had been thunderstorms in Montreal that afternoon.[11]

[75]        Then there is the use of a dildo and simultaneous insertion of his erect penis to achieve double penetration. First, Mr. Wilcox denies the timing of the event that the complainant situates in the early hours of a morning in the first week of August at the end of a sleepover. He says it occurred at a date after August 10 that he cannot pinpoint, but is unrelated to the circumstances and timing described by the complainant. He explained that he was unable to be precise about a specific date for this particular event, mainly because of the extensive nature of their sexual relations together during that timeframe. He added that he did not use a double-headed dildo that had plastic testicles attached, as the complainant described, but one he had acquired for use with a former boyfriend from Chicago. Moreover, the complainant could not have seen how the dildo was maintained in place along with his penis during the double penetration, since contrary to his testimony, the complainant was not lying on his back, but rather on his belly.

[76]        As far as the tearing of the complainant's anus and rectal bleeding are concerned, Mr. Wilcox says the complainant only mentioned this when the latter disclosed his own HIV positive status to him in May or June of 2006. Far from complaining in any way about the use of a dildo when that event occurred, Mr. Wilcox testified that the complainant frequently told him how much he had enjoyed the experience, and looked forward to repeating it.

[77]        In fact, Mr. Wilcox gave the dildo he had used on that occasion to the complainant, who eventually reciprocated by giving one to him as a gift as Mr. Wilcox was returning to the United States for the winter.

[78]        Mr. Wilcox also has a clear memory of inviting the complainant to two dinner parties with several of his friends after he had disclosed his HIV positive status to the complainant. At these events, the complainant was presented to his guests as his boyfriend. Two of these dinner guests testified, and confirmed Mr. Wilcox' testimony that he and the complainant acted towards each other in a manner that was indicative of an ongoing amorous relationship.

(iv) Issues arising from the conflicting evidence

[79]        It will be seen from the foregoing that the important issues that required resolution related to the nature of the sexual activity that led to Mr. Wilcox' disclosure and its timing, as well as the extent, if any, of any sexual activity between the parties after his disclosure.

IV

THE JUDGMENT OF THE COURT OF QUEBEC

[80]        The evidence at Mr. Wilcox' trial, including a voir dire as to the admissibility of a line of questioning from counsel for Mr. Wilcox, took eight days to complete, but spanned one year and nine days between December 7, 2009 and December 16, 2010. The trial judge rendered an oral judgment convicting Mr. Wilcox on August 29, 2011 and fixed September 12 as the date for sentencing arguments.[12] On that date, however, the trial judge rescinded his oral judgment and replaced it with a written one in which two paragraphs were added that the trial judge said would be of use to him in the sentencing judgment he would render. There were further remands to September 28 and October 4, at which time a pre-sentence report was ordered. On February 8, 2012 the case was put over to April 4 for argument, and the sentence was pronounced on June 5, 2012.[13]

[81]        The trial judge concluded that Mr. Wilcox could not rely on the complainant's implicit or contextual consent because he had sought out a sexual relationship at the Oasis Sauna. The required consent would have to have been clear and unequivocal, which was not the case in the absence of disclosure of his HIV positive status. The trial judge accepted the complainant's denial that he initiated a second round of anal intercourse at the sauna that was unprotected, as well as his testimony that he would never have engaged in unprotected sexual relations with Mr. Wilcox if he had known of his HIV positive status. The Crown had therefore made out the offence of aggravated sexual offence endangering the life of the complainant as charged in the indictment.

V

GROUNDS OF APPEAL

[82]        Mr. Wilcox initially submitted six grounds of appeal, but reduced them to four prior to the hearing.[14] After the hearing, he amended the fourth ground of appeal to that which appears below. He does not now contend that he was entitled to rely on a contextual or implicit consent to unprotected intercourse despite his HIV positive status. I propose to examine the grounds of appeal as they have been framed by counsel for Mr. Wilcox in the following sequence:

(1) The learned trial judge erred by refusing to consider the defence expert evidence of Robert Rousseau;

(2) The learned trial judge erred by concluding that the appellant was guilty before having heard the entirety of the evidence, creating a reasonable apprehension of bias;

(3) The learned trial judge erred by failing to provide reasonable and intelligible reasons for his judgment;

(4) The learned trial judge committed an error of fact when he concluded that the complainant would not have consented to engage in unprotected sexual intercourse at the Oasis Sauna and at the appellant's residence on July 21, 2005 had he known of the appellant's HIV positive status. It is submitted that the trial judge's conclusion of fact is irreconcilable. It was an error for the trial judge to conclude that the complainant would not have engaged in unprotected sexual intercourse at the sauna and on July 21, 2005 but would have consented on numerous occasions after disclosure was made.

VI

ANALYSIS AND DISCUSSION

(1)     The learned trial judge erred by refusing to consider the defence expert evidence of Robert Rousseau

[83]        Mr. Rousseau, who has some academic training in sexology, is the director general of a community organization known as Réseau. The objectives of Réseau are to promote the health of gay and bisexual men, as well as preventing them from becoming HIV positive. He described the environment of the saunas of the type frequented by such men, as well as the sexual practices that take place in them. His testimony was given both from a professional and personal perspective, as he is gay and has taken advantage of the sexual opportunities that are available in such saunas.

[84]        He explained that the mere presence of someone in such a sauna demonstrates consent to engage in sexual relations. Some participants also practice what is known as "barebacking", which means not using any prophylaxis during intercourse. Such persons can be said to tacitly consent to assume the risk of being infected when they do not proactively inquire into the HIV status of their sexual partner before the activity begins. The fact is, however, that unprotected sexual relations take place in such saunas.

[85]        Another reality is that there are occasionally presumptions associated with the kind of sexual activity that occurs. Some men believe they will inevitably become HIV positive. Thus, in order to control the timing of the occurrence, they seek out partners who can infect them. Such men are referred to as "bug chasers". On the other hand, although condoms are available at such saunas, some participants may inadvertently not use them because of momentary excitement to begin the sexual act, or because their powers of discernment have been altered by alcohol or psychotropic drugs.

[86]        Mr. Wilcox argues that the trial judge erred by rejecting this evidence and that he misapplied the criteria for admissibility of expert testimony as established in R. v. Mohan.[15] Those criteria are that the proposed evidence must be: a) relevant; b) necessary, that is, outside the experience or knowledge of the trier of fact but assessed with a view to assisting the trier of fact; c) not subject to an exclusionary rule; and, d) given by a properly qualified expert.

[87]        In disposing of the Crown's objection, the trial judge acknowledged that Mr. Rousseau was knowledgeable about the subject matter of his testimony. He nevertheless maintained the Crown's objection for the following reasons:

[73]      The expertise of Mr Rousseau relates to a silent understanding in gay saunas that those who have unprotected sex with strangers without disclosing their respective HIV status are namely people who are or HIV infected or are ready to risk so being infected and are indifferent to that possibility. He offered an expertise regarding the assessment of complainant's behaviour and a so-called tacit consent to be inferred from the attendance in these saunas reserved for gays.

[74]      That gentleman offers no scientific expertise but just an opinion that has nothing scientific, nothing but a psycho-sociological understanding and generalisation of the behaviour of some of those who engage in risky sexual practises in gay saunas. His opinion weighs and interprets the conduct of people attending gay saunas and the probative value of the testimony of the accused and of complainant. He testifies about his views about a silent consent of partners and on the contextual understanding of sexual mates entering saunas for gays when there is no disclosure of their HIV status.

[75]      In this matter, as it is a matter of opinion, it clearly is the responsibility of the trier of fact to make inferences or draw conclusions and to adjudge on the credibility of the witnesses and to draw inferences and conclusions from the non-expert evidence heard. The possibility or likelihood of it being an implicit consent does not suffice to render that testimony an expert testimony as it has nothing scientific and as it is not necessary.

[76]      On the grounds of necessity and absence of scientific expertise of the witness, this so-called expertise fails and is not admitted in evidence.

[References omitted.]

[88]        The thrust of Mr. Wilcox' argument is that Mr. Rousseau's testimony is necessary because it explains what kind of expectations exist and what kind of practices are observed in saunas such as the one where he and the complainant met. In particular, it confirms that there exists a belief that gay men who have unprotected sex in such circumstances are either already HIV positive or indifferent to becoming HIV positive.

[89]        From Mr. Wilcox' perspective, such testimony also has the effect of buttressing his credibility by confirming his mindset in respect of the subsequent sexual relations in which he participated with the complainant.

[90]        In support of the trial judge's decision, the Crown argues that Mr. Rousseau's testimony is inadmissible since it conflicts with the judgments of the Supreme Court of Canada in R. v. Ewanchuck[16] and R. v. J.A.[17] in which it was held that there is no defence of implicit consent in matters of sexual assault, and that whether the consent of a sexual partner exists or not must be assessed at the time the sexual activity takes place. The Crown also contends that the issue to be tried was whether the complainant would have consented had he known of Mr. Wilcox' HIV status, and not whether others similarly situated might have done so.

[91]        I agree with the Crown that the trial judge properly maintained its objection to the testimony of Mr. Rousseau on the basis that all of the criteria required by Mohan were not satisfied.

[92]        First there is the question whether Mr. Rousseau could be properly qualified as an expert. The trial judge had an important gate-keeping role to perform, and to ensure that any otherwise admissible opinion evidence be advanced by a witness with the requisite qualifications to give such evidence.

[93]        An analogous situation occurred in R. v. Bedford,[18] a judgment of the Ontario Court of Appeal, where expert testimony relating to the component factors of sadomasochism was found to be inadmissible at the trial of an accused charged with unlawfully keeping a bawdy house contrary to subsection 210(1) Cr.C. In upholding the trial judge's decision to exclude the evidence, Finlayson, J.A. said this on behalf of the Court:

51        Necessity is very much a problem. What was put forward as expert opinion had none of the indicia of scientific knowledge. This of course overlaps into the absence of a qualified expert. Here, in explaining the nature of S/M, the witnesses were simply giving their personal opinions based on their own experience, the reading of some literature, anecdotal material, some interviews, and very little else. As stated by Sopinka J. for the Court in Mohan at 423:

The trial judge should consider the opinion of the expert and whether the expert is merely expressing a personal opinion or whether the behavioural profile which the expert is putting forward is in common use as a reliable indicator of membership in a distinctive group.

52        More specific to the facts of this case are my own observations in R. v. McIntosh (1997), 117 C.C.C. (3d) 385 at 392 (Ont. C.A.):

... it seems to me that before a witness can be permitted to testify as an expert, the court must be satisfied that the subject-matter of his or her expertise is a branch of study in psychology concerned with a connected body of demonstrated truths or with observed facts systematically classified and more or less connected together by a common hypothesis operating under general laws.

53        Moreover, even if the views expressed by the witnesses in this case could be classified as the subject of expert opinion, the field of expertise would have to be treated by the court as novel, which calls for a higher threshold of reliability. As Sopinka J. put it in Mohan at 415:

In summary, therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle.

[Emphasis added.]

[94]        In this case, Mr. Rousseau relies on his personal experience as someone who has frequented gay saunas as well as his work with Réseau and the reading he has done in that connection. The effect of his testimony is nevertheless an undisguised attempt to transpose onto the complainant the behaviour of some gay men who choose to engage in risky sexual conduct in gay saunas. Such evidence is not at all helpful to the trier of fact, since the possible conduct of other gay men is irrelevant to assessing the actual conduct of the complainant in respect of his relations with Mr. Wilcox, and whether the complainant actually consented or would have consented once disclosure was made.

[95]        It is true that his testimony might help to explain Mr. Wilcox' conduct in failing to affirmatively disclose his HIV status, but that has no bearing on the component factors of the offence of aggravated sexual assault with which he is charged.

[96]        In short, not only was the witness unqualified to give an expert opinion based on the exacting criteria of Mohan, but it was also irrelevant in the assessment of the conduct of both the complainant and the accused. The existence or non-existence of consent is purely subjective, taking account of all the facts adduced at trial. Moreover, expert testimony cannot be used to enhance the credibility of a witness such as Mr. Wilcox, or, for that matter, impugn the credibility of the complainant.[19]

[97]        Finally, since Mr. Wilcox no longer argues that he was entitled to rely on the complainant's implicit or contextual consent because of the circumstances of their first sexual encounter, Mr. Rousseau's testimony becomes all the more irrelevant.

[98]        I would therefore reject this ground of appeal.

(2)     The learned trial judge erred by concluding that the appellant was guilty before having heard the entirety of the evidence, creating a reasonable apprehension of bias

[99]        The essence of this submission stems from a remark the trial judge made when he announced that he was rescinding the oral judgment he had rendered on August 29, 2011 by which he convicted Mr. Wilcox and replacing it with the written judgment dated September 12 that is now before the Court.[20] That remark is to the following effect:

This file is peculiar in many ways and quite possibly I made it peculiar as well myself and I did you no help for that purpose in that amended judgment I rendered I have set the basis for the representations for today and I am ready to hear you. Not useful that I would say that save for my personal intimate conviction for which I thought Mr. Wilcox was guilty all the way through in law, but the facts I felt I was short. This is why I made that second amended judgment.

[Emphasis added.]

[100]     Mr. Wilcox contends that the forgoing comment demonstrates that the trial judge had reached a conclusion as to his guilt before hearing all of the evidence when he said he thought Mr. Wilcox was guilty "all the way through" in law.

[101]     I do not ascribe the inference Mr. Wilcox suggests to the trial judge. To do so would require a belief that he was speaking as if he meant that Mr. Wilcox was guilty in law from the moment the trial began, thereby demonstrating a bias against him. Such a proposition would be contrary to the recent judgment of the Supreme Court of Canada in Cojocaru v. British Columbia Women's Hospital and Health Centre,[21] a case in which the integrity of the judgment of a trial judge was scrutinized because he had copied 321 of 368 paragraphs of the plaintiff's written submissions into his judgment.

[102]     Speaking for the Court, McLachlin, C.J. said this:

[14]      Society entrusts to the judge the weighty task of deciding difficult issues of fact and law in order to resolve disputes between citizens. Judges are appointed from among experienced lawyers and are sworn to carry out their duties independently and impartially. [15]      Judicial decisions benefit from a presumption of integrity and impartiality — a presumption that the judge has done her job as she is sworn to do. This reflects the fact that the judge is sworn to deliver an impartial verdict between the parties, and serves the policy need for finality in judicial proceedings     [16]      Courts have repeatedly affirmed that the starting point in an inquiry such as this is the presumption of judicial integrity and impartiality. In Teskey, Charron J., for the majority, stated, at para. 19:         Trial judges benefit from a presumption of integrity, which in turn encompasses the notion of impartiality. ... Hence, the reasons proffered by the trial judge in support of his decision are presumed to reflect the reasoning that led him to his decision.

[14]    La société confie au juge la lourde tâche de trancher d’épineuses questions de fait et de droit pour régler les différends entre citoyens.  Les juges nommés sont choisis parmi les avocats chevronnés et prêtent le serment d’exercer leurs fonctions de façon indépendante et impartiale. [15]    Les décisions judiciaires bénéficient d’une présomption d’intégrité et d’impartialité — le juge est présumé avoir honoré son serment en accomplissant sa tâche. Cette présomption découle du serment que prête le juge de rendre un verdict impartial entre les parties et contribue à la finalité des instances judiciaires.   [16]    Les tribunaux ont affirmé à maintes reprises que le point de départ d’une analyse comme celle-ci est la présomption d’intégrité et d’impartialité judiciaires. Dans l’arrêt Teskey, la juge Charron, s’exprimant au nom de la majorité, a affirmé ce qui suit, au par. 19 :         Les juges de première instance jouissent d’une présomption d’intégrité qui, à son tour, englobe la notion d’impartialité [. . .] Ainsi, les raisons invoquées par le juge du procès au soutien de sa décision sont présumées refléter le raisonnement l’ayant conduit à cette décision.

[17]      Justice Abella, in dissent, agreed, writing at length about the judicial history of the presumption of integrity and the purposes it serves:         The presumption of integrity acknowledges that judges are bound by their judicial oaths and will carry out the duties they have sworn to uphold. This includes not only a presumption — and duty — of impartiality but also of legal knowledge. ... [J]udges are presumed to know and act in accordance with their legal responsibilities .... [para. 29]   [Emphasis added]

[17]    La juge Abella, dissidente, a souscrit à cette affirmation et s’est exprimée en détail sur l’historique judiciaire et les objectifs de la présomption d’intégrité :         La présomption d’intégrité reconnaît que les juges sont tenus de respecter leur serment professionnel et de s’acquitter des obligations qu’ils ont fait le serment de remplir.  Cette présomption inclut à son tour non seulement une présomption — et une obligation — d’impartialité, mais aussi une présomption de connaissance du droit [. . .]  [L]es juges sont présumés connaître le droit et agir en conformité avec leurs obligations légales. . [par. 29]   [soulignage ajouté]

[103]     The judge's expression "all the way through" was more likely, as Crown counsel observed during oral argument, an English language equivalent for the French language expression "sur toute la ligne", with which the trial judge would be more familiar. Looked at from that perspective, the statement is in reality an expression of the judge's belief that the evidence against Mr. Wilcox was overwhelming as a matter of law. The comment should therefore be seen as substantive, not temporal.

[104]     In order to succeed on this submission, Mr. Wilcox would have to show, again to quote from the reasons of McLachlin, C.J. in Cojocaru, that "[…] a reasonable person would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently."[22]

[105]     "All relevant circumstances", in my view, includes the transcript of the trial as a whole. Having read that transcript, I can find nothing that would remotely suggest the trial judge gave any indication that he was predisposed to convict Mr. Wilcox. Indeed, the fact that the trial judge rejected at least some of the complainant's evidence (for example, the dates within which the alleged offence occurred) is consistent with the absence of any apprehended bias.

[106]     I would also reject this ground of appeal.

(3)     The learned trial judge erred by failing to provide reasonable and intelligible reasons for his judgment

[107]     Before embarking on the substance of this submission, some preliminary remarks are in order.

[108]     This was the trial of an accused whose first language is English. The rights under the Criminal Code that flow from that status include the right to be tried before a judge who speaks the official language of Canada that is the language of the accused.[23] Such a judge must not only be able to understand that language, but also actually speak it throughout the trial, including when interlocutory or final judgments are rendered.[24] Moreover, in order to fulfill the statutory obligation that a transcript be available in an official language when testimony is given in another official language, as required by subsection 530.1(g)(ii) Cr.C., the accused has the right to consecutive translation during the trial.[25]

[109]     In this respect, I note from reading the entire transcript that the trial judge not only understands and speaks the English language but also is perfectly capable of conducting a criminal trial in that language. Moreover, save for some unfortunate exceptions,[26] he ensured that the accused's rights under sections 530 and 530.1 Cr.C. were respected.

[110]     I mention this because an underlying basis for Mr. Wilcox' contention that the judgment is unintelligible is that the judge wrote a 243 paragraph judgment in English, which evidently is not the judge's first language. As the trial judge had a statutory duty to deliver his judgment in the language of the accused, I think it preferable to discern the true meaning of what the judge wrote in light of the evidence he heard.

[111]     I appreciate that such an exercise might be easier for someone with legal training, as opposed to Mr. Wilcox, since the judgment is replete with Gallicisms, which is another complaint of Mr. Wilcox. As a simple illustration, the judge uses the word "sane" as an adjective to describe a person or an anus when he likely means "healthy", perhaps deriving the word "sane" from the French word "saine".[27] Similarly, on occasion he uses the word "stay" when referring to an appellate judgment, doubtless having in mind the French word "arrêt".[28]

[112]     It is not uncommon for judges whose first language is French to use Gallicisms when writing judgments in English, just as it is not uncommon for judges whose first language is English to use Anglicisms when writing judgments in French. I would be loathe to be critical of the trial judge because of the imperfect quality of the English in his judgment; on the contrary, he should be recognized for the additional effort that was undoubtedly required to respect Mr. Wilcox' statutory right to have the judgment written in English. That being said, it is not the quality of the prose in the judgment that should be reviewed under this ground of appeal, but the intelligibility of the reasons.

[113]     Another basis put forward is that the trial judge mistakenly referred to the accused when he meant the complainant and vice-versa on 12 occasions, and on other occasions mistakenly inverted the year 2005 (the year the events in issue occurred) and with that of 2011 (the year during which the judge was writing his judgment).

[114]     Obviously, these are clerical errors that were the result of bad proofreading before the judgment was signed. They are not material errors and do not impugn the result, nor can they possibly be a proper basis in law to conclude that the judgment does not satisfy the jurisprudential criteria for what a judgment in a criminal case should contain.

[115]     On the latter subject, Mr. Wilcox contends that the judgment does not satisfy the conditions set out by the Supreme Court in R. v. Sheppard.[29] When reviewing the analysis in Sheppard, however, it is useful to remember that the entirety of the trial judgment rendered orally in that case was to the following effect:

Having considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, I find the defendant guilty as charged.[30]

[116]     Whatever criticism may be directed at the trial judgment in this appeal, brevity is not one of them. If anything, the judgment is unnecessarily long and complex for what is a relatively uncomplicated matter, and it is structured in a way that might well be unorthodox. That being said, the reasons for judgment address all the required subjects, although the order of their treatment at times makes the substance challenging to follow. For example, beginning a judgment by first describing the theory of the defence and then that of the Crown before the reader knows what the facts are that underlie the respective theories is unhelpful, but does not render the judgment unintelligible. It also tends to undermine the basic principle that the burden of proof lies on the Crown, not the accused.

[117]     Mr. Wilcox' principal reproach is that the trial judge did not explain why he disbelieved him when he testified that the parties continued to engage in unprotected intercourse after he disclosed his HIV positive status, and that the complainant had initiated a second act of intercourse by Mr. Wilcox at the Oasis Sauna that was unprotected. This is all the more troubling, he says, since the trial judge at one stage wrote that part of the complainant's testimony contained "acknowledged frailties, weaknesses and possible untrustworthiness".

[118]     As for the Crown, it recognizes that the judgment is far from impeccable, but notes that the standard required of a trial judgment is not that of perfection,[31] and that appellate courts should not intervene "simply because it thinks the trial court did a poor job of expressing itself."[32]

[119]     Moreover, it notes that a trial judge can accept part of a witness' testimony but reject other parts of that testimony. In this respect, the Crown says there was nothing unusual for the trial judge to find that the complainant would not have agreed to unprotected intercourse, while at the same time finding his description of the nature of his relationship with Mr. Wilcox after disclosure to be less trustworthy.

[120]     It further states that the trial judge described at length why he did not believe Mr. Wilcox' by referring to his established reticence to disclose his HIV positive status, the shame he associated with that status and the fear of how he would be treated if it were known, as well as what the trial judge perceived as an admission of responsibility in the email he sent the complainant that I have set out in paragraph [55] above.

[121]     In R. v. R.E.M.,[33] an appeal was taken to the Supreme Court of Canada in a case in which the British Columbia Court of Appeal had allowed an appeal and ordered a new trial because it considered the trial judge's reasons in an 11-count sexual assault case were inadequate. The trial judge found the complainant to be credible, and accepted much of her evidence while rejecting some of it that conflicted with other evidence. The accused's evidence was largely disbelieved, except for certain aspects that were undisputed. Like this case, credibility was a central focus of the trial.

[122]     On behalf of the Court, McLachlin, C.J. reiterated the functional approach to the purpose of reasons seen in Sheppard[34], and said this:

 

[25]      The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve — to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. The functional approach does not require more than will accomplish these objectives. Rather, reasons will be inadequate only where their objectives are not attained; otherwise, an appeal does not lie on the ground of insufficiency of reasons. This principle from Sheppard was reiterated thus in R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 31:         The general principle affirmed in Sheppard is that “the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required. The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case” (para. 33). The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision.         [Emphasis in original.]

[25]    L’approche fonctionnelle préconisée dans Sheppard indique que les motifs doivent être suffisants pour remplir leurs fonctions — informer les parties du fondement du verdict, rendre compte devant le public et permettre un véritable examen en appel.  L’approche fonctionnelle n’exige rien de plus que ce qui permet d’accomplir ces objectifs.  En fait, les motifs ne seront insuffisants que s’ils n’atteignent pas leurs objectifs; dans le cas contraire, l’insuffisance des motifs ne pourra justifier un appel.  Ce principe tiré de Sheppard a été réitéré dans R. c. Braich, [2002] 1 R.C.S. 903, 2002 CSC 27, par. 31 :         Le principe général confirmé dans Sheppard est le suivant : « il faut repousser toute tentative de faire de l’absence de motifs ou de leur insuffisance un moyen d’appel distinct.  Une approche plus contextuelle s’impose.  L’appelante doit établir non seulement que les motifs comportent des lacunes, mais également que ces lacunes lui ont causé un préjudice dans l’exercice du droit d’appel que lui confère la loi en matière criminelle » (par. 33).  En d’autres termes, le critère applicable consiste à savoir si les motifs jouent bien le rôle qui constitue leur raison d’être, soit permettre à la cour d’appel d’apprécier la justesse de la décision de première instance.         [En italique dans l’original.]

[123]     The Chief Justice went on to say this:

[37] As we have seen, the cases confirm that a trial judge’s reasons should not be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions — the “why” for the verdict — are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.	[37]    Comme nous l’avons vu, la jurisprudence confirme que les motifs du juge du procès ne doivent pas être considérés isolément, comme formant un tout autonome.  Le caractère suffisant des motifs ne dépend pas seulement de ce que le juge du procès a dit, mais de ce qu’il a dit dans le contexte du dossier, des questions en litige et des observations des avocats au procès. Il s’agit de savoir si, en lisant les motifs dans leur contexte global, il est possible de discerner le fondement des conclusions du juge du procès — le « pourquoi » du verdict.  Si oui, les motifs du jugement remplissent bien leurs fonctions. Les parties connaissent le fondement de la décision.  Le public sait ce qui a été décidé et pourquoi.  Et la cour d’appel peut déterminer si le juge du procès a suivi la mauvaise voie et commis une erreur.  La jurisprudence et les auteurs s’entendent sur ce point.
[…]	[…]
[39] In Sheppard, Binnie J. affirmed the need to look at the record: “Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene” (para. 46). In point 2 of his summary (at para. 55), he stated: “Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record.”  Similarly, with respect to the need for lawyers to know the basis of the judgment for appellate purposes, he stated at point 3, after saying that they may require reasons:  “On the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record.” Throughout the reasons in Sheppard, Binnie J. emphasizes the functional and relative nature of the question of whether a trial judge’s reasons for judgment are adequate.   [Emphasis added.]	[39]    Dans Sheppard, le juge Binnie a confirmé la nécessité d’examiner le dossier : « Lorsque la raison pour laquelle un accusé a été déclaré coupable ou acquitté ressort clairement du dossier, et que l’absence de motifs ou leur insuffisance ne constitue pas un obstacle important à l’exercice du droit d’appel, le tribunal d’appel n’interviendra pas » (par. 46).  Au point 2 de son résumé (par. 55), il a affirmé : « Il peut être important d’exprimer les motifs du jugement pour clarifier le fondement de la déclaration de culpabilité, mais il se peut que ce fondement ressorte clairement du dossier. »  De même, en ce qui concerne la nécessité que les avocats connaissent le fondement du jugement pour évaluer l’opportunité d’un appel, il a reconnu que les motifs peuvent s’avérer essentiels, puis il a ajouté au point 3 : « Par contre, il est possible que les autres éléments du dossier leur apprennent tout ce qu’ils doivent savoir à cette fin. »  Tout au long de sa décision dans Sheppard, le juge Binnie met l’accent sur le caractère fonctionnel et relatif de la question de savoir si le juge du procès a suffisamment motivé sa décision.   [soulignage ajouté.]

[124]     The Supreme Court's judgment in R. v. Dinardo[35] is a further illustration of how appellate courts are to assess trial judgments in terms of the adequacy of reasons. In that case, the Court allowed an appeal from a verdict of conviction that had been upheld by a majority of this Court in a sexual assault and sexual exploitation case involving a mildly mentally challenged complainant whose evidence was inconsistent and contradicted by the accused.

[24] In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, this Court confirmed that courts have a duty to give reasons. Reasons serve many purposes; in particular, they explain the court’s disposition of the case and facilitate appellate review of findings made at trial. The content of the duty will, of course, depend upon the exigencies of the case. As this Court has noted, “the requirement of reasons is tied to their purpose and the purpose varies with the context” (Sheppard, at para. 24).

[24]    Dans l’arrêt R. c. Sheppard, [2002] 1 R.C.S. 869, 2002 CSC 26, notre Cour a confirmé l’obligation des tribunaux de motiver leurs décisions.  Les motifs sont utiles à diverses fins; ils servent notamment à expliquer la décision du tribunal et à faciliter l’examen en appel des conclusions tirées au procès.  La portée de cette obligation dépend, bien entendu, des circonstances de l’affaire.  Comme notre Cour l’a souligné, « l’obligation de donner des motifs est liée à leur fin, qui varie selon le contexte » (Sheppard, par. 24).

[25] Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons (para. 55). The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case’s live issues, having regard to the evidence as a whole and the submissions of counsel (R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 32). An appeal based on insufficient reasons will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25.   [Emphasis added.]

[25]    L’arrêt Sheppard commande aux juridictions d’appel d’appliquer un critère fonctionnel pour déterminer si une décision est suffisamment motivée (par. 55).  Il ne s’agit pas de se livrer à un exercice abstrait, mais de se demander si les motifs répondent bien aux questions en litige, compte tenu de l’ensemble de la preuve et des observations des avocats (R. c. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (C.A. Ont.), par. 32).  Un appel fondé sur l’insuffisance des motifs ne sera accueilli que si les lacunes des motifs exprimés par le juge du procès font obstacle à un examen valable en appel: Sheppard, par. 25.   [soulignage ajouté.]

[125]     And once again, albeit in a private law context, the Supreme Court in Cojocaru[36] notes that the existence of a defect in reasons for judgment must be looked at objectively, and that:

[13]      […] The question is whether a reasonable person would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently.   [Emphasis added.]

[13]    […] Il s’agit de savoir si, en tenant compte de toutes les circonstances pertinentes, une personne raisonnable conclurait que la prétendue lacune démontre que le processus était fondamentalement inéquitable, en ce sens que le juge de première instance n’a pas porté son attention sur les  faits, les arguments et les questions en litige et que sa décision à leur égard n’a pas été rendue de façon impartiale et indépendante.   [soulignage ajouté.]

[126]     Although the substance of the reasons of the trial judge are certainly not free from criticism, an issue that I examine in the fourth ground of appeal, in my opinion they adequately serve the purposes for which they were intended.

[127]     Whatever the live issues may have been at trial, in appeal, there is really only one: whether there is a reasonable doubt that the complainant did consent or would have consented to unprotected intercourse had Mr. Wilcox disclosed his HIV positive status to him. There can be no doubt that the trial judge addressed that issue. He did so mainly by assessing the credibility of the complainant in the context of his relationship with Mr. Wilcox, their sexual activity in particular, and Mr. Wilcox' failure to proactively disclose his HIV positive status, rather than his testimony and other defence evidence relating to the nature of their relationship after he had disclosed that status.

[128]     It is certainly true that the trial judge vacillated considerably in the course of his analysis based on W.(D.).[37] These ruminations could well leave a reader puzzled, to say the least. Mr. Wilcox points in particular to the following extracts from the reasons where the judge considers whether to believe his testimony that the parties continued to engage in both protected and unprotected anal intercourse after he disclosed his HIV positive status, which the complainant had categorically denied:

[182]    That does not exclude in theory the possibility of risky sexual intercourses by both the accused and complainant between July and October 2005.

[…]

[195]    A slight doubt surges whether the dildo penis penetration happened in or after the month of July 2011. The Court cannot set aside a light possibility that both kept having unprotected sexual intercourses. Even if unprotected intercourses would objectively surprise, in fact, it is not impossible. Coherence in sexuality is not always evident. The magic thinking about the safety of withdrawal before ejaculation in unprotected anal sex might have to do with that.

[…]

[200]    But complainant gave overt reasons to believe that there could be an ongoing intimate relationship, ongoing discussions, ongoing dating, ongoing expression of gestures of sensuality and love after July 2005.

[201]    That questions complainant's coherence as alleged by the accused. Complainant has a credibility gap as to what happened with the accused after July 2005. Complainant's falling in love with his present partner at the beginning of fall 2005 does not exclude an interim period where both complainant and the accused continued to date one another and still getting involved in more intimate intercourses

[…]

[204]    These doubts are raising the question of complainant engaging in sexual partnership and sexual intercourses with the accused from August on. Complainant's trustworthiness lacks specifically there and not on his absence of unprotected sexual intercourse with others and not on his unwillingness to engage sexually with someone HIV infected in July 2005.

[205]    Clearly complainant would have never engaged in unprotected significantly risky sexual intercourse with the accused if there had been proper disclosure. There and then the elements of the commission of the infraction were established.

[…]

[209]    Complainant strangely referred to having friends of whom he did not know the HIV status, as he was not even put the question of him engaging in any sexual intercourses with them for the period of July 2005 to October 2005. He also denies any sexual intercourse with anyone else and he is believed.

[210]    Throughout he always said he had no unprotected intercourse with anyone save the July one with the accused and further that he had none after July with the accused. On that a doubt remains because of his declaration as to ongoing sex and wanting to keep dating and because of the frailties and contradicted evidence of complainant in the months of August and October 2005.

[…]

[212]    Complainant's behaviour is believed to show ongoing dating. In the course of this lack of credibility of complainant as to dating, a doubt surges regarding ongoing sex practises.

[213]    Ongoing sexual intercourses with the accused until October is a possibility that cannot be ruled out. Complainant said so in a question to the accused in his recorded 2006 interrogator as he says in a preamble that they kept having sex and that they wanted to keep on dating.

[…]

[218]    The Court cannot come to a definite conclusion that the fatal unprotected intercourse dated to July or thereafter although there is a very strong possibility with the symptoms that it was caused in July before disclosure.

[219]    That questions and raises a doubt as to the denial of complainant on the continuation of the sexual intercourses. Complainant's denial was radical. It is being questioned by circumstances and a possible truthful allegation of the accused that they did continue to have both protected and unprotected sex. This makes it difficult to believe beyond a reasonable doubt that the first sexual intercourse at the accused residence happened as stated by complainant by a dildo penis penetration or that their sexual encounters ended there. But there is no doubt that there was an anal penetration that per se is a significant risky HIV sexual intercourse even if exposed solely to pre-ejaculatory liquids of the accused.

[220]    If that traumatic intercourse would have happened at the residence of the accused and would have indeed scared complainant as he says, it is doubtful that complainant would have continued dating or having unprotected sex or would have kept that way in touch with the accused simply to keep track of him.

[221]    Indeed the reasonable possibility cannot be set aside that they kept on having that protected and unprotected sex and that the May and June 2006 testing was passed so late as a consequence of a later than July traumatic sexual intercourse with the accused. It could go both ways time wise. But there is evidence that cannot set aside as complainant has been contradictory and untrustworthy and vague and confused on some of the evidence after July 2005 to August 2005.

[222]    That traumatic intercourse could certainly be a source of greater concern for complainant and could also contribute to explain why anyone would delay further a test that could have been passed a few months after the time recommended. Complainant would not have felt as vulnerable after the July intercourse if it was a straightforward unprotected anal intercourse risky but never as much as the one with the dildo and penis penetration. The first negative test of September 2005 could also have tricked both in indulging in more.

[223]    After the last June 2006 tests, the October 2006 invitation to the accused to confess with the promise he would be forgiven, trapped him into admitting his responsibility, saying how sorry he was. At the same time, the accused attempted to share the responsibility of whatever went on between the parties.

[224]    If there were sexual intercourses after July 2005, complainant is the one who took the ultimate risk and responsibility of been carried in risky sexual behaviour and of being contaminated by the accused HIV infection if it had not already contaminated him.

[129]     When applying the law to the facts he retained, however, the judge said this:

[228]    This case offers a straightforward application of the Cuerrier stay of the Supreme Court of Canada.

[229]    Prosecution had to establish beyond a reasonable doubt that the accused's acts endangered the life of complainant as there was no disclosure, no implicit consent and as complainant would never have accepted to have sexual intercourse with the accused if he had been informed and the significantly unprotected sexual intercourse at the accused residence (section 268 (1) and 272 of the Criminal Code).

[230]    Complainant was not infected before meeting the accused. There is evidence to so believe beyond a reasonable doubt that complainant was not then infected. Complainant and the accused engaged in an unprotected sexual intercourse at the accused residence that was significantly risky according to the ruling of Cuerrier. The guilt of the accused is established by the simple exposure of complainant to a significant risk of HIV infection before any disclosure was made, as complainant would never have entered a sexual intercourse with the accused if there had been disclosure by the accused of his HIV infection.

[231]    The expert Dr Morissette stated very clearly that the HIV infection is lethal and endangering life when complainant was sexually assaulted.

[232]    The anal unprotected intercourse represented a significant risk just through complainant's anal exposure to the pre-ejaculatory liquids of the accused.

[233]    The Court makes the finding that the accused intentionally applied force against the consent of the complainant. Fraud, dishonesty of the accused sufficed to vitiate consent. That had to be assessed objectively to determine it. This was so as consent was not to simply engage in sexual intercourse but to have sexual intercourse with a partner who was not HIV positive. That dishonesty of the accused had to be such as exposing the complainant to a significant risk of serious bodily harm, as HIV has been so characterised.

[234]    As dishonesty has to result in deprivation, both the risk of the HIV infection, AIDS as well as that actual harm meet the test by establishing that that dishonest act had such an effect of exposing complainant to that significant risk of bodily harm.

[235]    In this case, the accused who to his knowledge was HIV positive since 2003, did not disclose his HIV positive status at any time before the sexual July 2005 gatherings were through. He knew that he could not irresponsibly put the life of anyone at risk in abstaining disclosing is HIV positive status with significant risky sexual activities.

[236]    There was no consent whatsoever by complainant to be exposed to such a risk. Consent had to be clear and unequivocal and such was not the case. There was no contextual implicit consent of complainant that could be inferred subjectively from the whole circumstance. The accused was truly dishonest and exposed complainant to a risk of harm that was not trivial but of serious bodily harm that is fatal, lethal. The accused knew it and admitted he was unable to disclose that dirty little secret.

[237]    There was only disclosure once confronted by complainant after an unprotected anal penetration.

[238]    The Crown had to show that complainant would have refused to engage in unprotected sex with the accused if he had been advised that the accused was HIV positive. The evidence is to the effect that complainant would not at all have accepted to have any sexual intercourse with the accused if he had been advised. Complainant is believed and trustworthy.

[239]    The aggravating factor of the HIV infection of complainant prior to August 2005 is not established beyond a reasonable doubt. In criminal matters, there is one and only one test and probability even to a very high degree is not sufficient for a verdict of guilt. Evidence of guilt has to be established beyond a reasonable doubt. The likelihood of complainant's version does not suffice on the aggravating factor. Complainant's version of the evidence regarding the timing of the incident of the dildo penis traumatic sexual anal intercourse is shaken but not defeated or shaken anyway as to its happening. Complainant's version has been shaken as to the continuation of the sexual partnership after disclosure.

[130]     I appreciate that Mr. Wilcox does not share the trial judge's analysis. Indeed, the content of the judgment is in many respects confusing. In his application of the law to the facts, the trial judge devotes several paragraphs ([228] - [237]) to what is in reality uncontested, namely, that Mr. Wilcox engaged in anal intercourse with the complainant without disclosing his HIV positive status, while devoting only one paragraph ([238]) to the equally important issue of whether the complainant would have agreed to unprotected sexual activity had he known that Mr. Wilcox was infected.

[131]     Despite the trial judge's extensive hesitations I set out at paragraph [128], he concludes in the last two sentences of paragraph [238] that he believes the complainant's testimony that he would not have participated in unprotected sexual activity with Mr. Wilcox after disclosure of his HIV positive status. Notwithstanding the brevity of that determination, Mr. Wilcox cannot contend successfully that he does not understand why the trial judge convicted him. Whether the trial judge was right to do so is addressed in the next ground of appeal, but the judgment nevertheless satisfies, at least minimally, the requirement of explaining the basis of the conviction to the accused, albeit not as fulsomely or clearly as one might hope.

[132]     Finally in this respect, it is apparent that the judgment itself allows for the valid exercise of a right of appeal, unlike the trial reasons in Sheppard,[38] which did not even describe the evidence, let alone make any findings. The stylistic foibles in the judgment in this case do not preclude the exercise of effective appellate review.

[133]     I therefore conclude that this ground of appeal must be rejected.

(4)     The learned trial judge committed an error of fact when he concluded that the complainant would not have consented to engage in unprotected sexual intercourse at the Oasis Sauna and at the appellant's residence on July 21, 2005 had he known of the appellant's HIV positive status. It is submitted that the trial judge's conclusion of fact is irreconcilable. It was an error for the trial judge to conclude that the complainant would not have engaged in unprotected sexual intercourse at the sauna and on July 21, 2005 but would have consented on numerous occasions after disclosure was made.

[134]     The success of this ground of appeal depends on whether there is a basis for the Court to intervene in the trial judge's assessment of the respective reliability and credibility of the complainant and Mr. Wilcox in order to determine whether there exists a reasonable doubt as to his guilt on the charge of aggravated sexual assault.

[135]     Before doing so, however, it is useful to recall what role appellate courts can properly play in reviewing trial judge's findings based on credibility in criminal cases. The Supreme Court has had occasion to comment on this topic in the recent past, and again this year.

[136]     An illustration of the reserve appellate courts must display when assessing findings based on credibility can be seen from the majority reasons of Bastarache and Abella, JJ. in R. v. Gagnon,[39] which was a case of alleged sexual assault of a young girl when she was between two and five years old. The trial judge convicted, but a majority of this Court intervened on the basis of the insufficiency of the reasons.[40] The test for appellate intervention and the reason why the Supreme Court majority restored the verdict of conviction are concisely stated as follows:

 

[10]      There is general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. It is not enough that there is a difference of opinion with the trial judge (Schwartz v. Canada, [1996] 1 S.C.R. 254, at paras. 32-33; H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 74). A succinct description of the overall approach appears in R. v. Burke, [1996] 1 S.C.R. 474, at para. 4, where this Court stated that “it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can . . . overturn the trial court’s verdict”. With respect to the credibility of witnesses, the same standard applies. In Lavoie v. R., [2003] Q.J. No. 1474 (QL), at para. 37, Nuss J.A. of the Quebec Court of Appeal stated that a trial judge’s assessment of the credibility of witnesses “will not be disturbed unless it can be demonstrated that he committed a palpable and overriding error” (citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33).

[10]    En ce qui a trait au critère d’examen d’une conclusion sur la crédibilité tirée en première instance, il est généralement admis que la cour d’appel doit faire preuve de déférence, sauf erreur manifeste ou dominante.  Elle ne peut intervenir simplement parce qu’elle diffère d’opinion (Schwartz c. Canada, [1996] 1 R.C.S. 254, par. 32 33; H.L. c. Canada (Procureur général), [2005] 1 R.C.S. 401, 2005 CSC 25, par. 74).  L’approche globale qui s’impose à cet égard a été décrite succinctement dans l’arrêt R. c. Burke, [1996] 1 R.C.S. 474, par. 4, où notre Cour a dit : « . . . ce n’est que si elle a tenu compte de toute la preuve soumise au juge des faits, et décidé qu’une déclaration de culpabilité ne peut pas s’appuyer raisonnablement sur cette preuve, que la cour peut [. . .] écarter le verdict du juge du procès ».  La même règle vaut pour l’appréciation de la crédibilité des témoins.  Dans Lavoie c. R., [2003] J.Q. no 1474, par. 37, le juge Nuss, de la Cour d’appel du Québec, a dit que les conclusions du juge du procès sur la crédibilité des témoins [TRADUCTION] « ne pourront être modifiées que s’il est établi qu’il a commis une erreur manifeste et dominante » (citant l’arrêt Housen c. Nikolaisen, [2002] 2 R.C.S. 235, 2002 CSC 33).

[11]      In this case, the majority in the Court of Appeal expressly declined to find the verdict unreasonable, thereby confirming that the verdict was available on the record. Instead, it based its analysis on a conclusion that the trial judge’s reasons, like those in R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, were [translation] “insufficient” (para. 91) and that she had therefore committed an error in law. Yet it is clear from its reasons that what was troubling the majority was not the sufficiency of her reasons but the trial judge’s findings of credibility. In particular, the majority disagreed with her conclusions about the credibility of the accused, and, contrary to her findings, appears to have concluded that the evidence of the accused ought to have raised a reasonable doubt. Ignoring both this Court’s dictum in Burke and the unique position a trial judge enjoys in being able to see and hear the witnesses, the majority chose instead to substitute its own assessment of credibility for that of the trial judge by impugning her reasons, saying she did not sufficiently explain why the evidence did not raise a reasonable doubt. We disagree.   [Emphasis added.]

[11]    En l’espèce, les juges majoritaires de la Cour d’appel ont expressément refusé de conclure au caractère déraisonnable du verdict, confirmant de ce fait que le dossier autorisait le verdict prononcé.  Ils ont plutôt fondé leur analyse sur la conclusion que les raisons de la juge du procès étaient « insuffisantes » (par. 91) à l’instar de celles en cause dans l’arrêt R. c. Sheppard, [2002] 1 R.C.S. 869, 2002 CSC 26, de sorte qu’une erreur de droit avait été commise.  Il ressort pourtant de leurs motifs que ce n’est pas la suffisance des raisons de la juge du procès qui leur faisaient souci, mais bien ses conclusions relatives à la crédibilité. Les juges majoritaires se disent tout particulièrement en désaccord avec ses conclusions sur la crédibilité de l’accusé, semblant estimer au contraire que le témoignage de ce dernier aurait dû soulever un doute raisonnable. Faisant fi de la remarque de notre Cour dans l’arrêt Burke et de l’avantage dont jouit le juge du procès du fait qu’il observe et entend les témoins, les juges majoritaires ont plutôt choisi de substituer leur propre appréciation de la crédibilité à celle de la juge du procès et d’écarter ses motifs, affirmant qu’elle n’avait pas bien expliqué en quoi la preuve ne soulevait pas un doute raisonnable. Nous ne sommes pas de leur avis.   [Soulignage ajouté.]

[137]     The message to appellate courts was clear:

[19]      This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court. Having encouraged these expanded reasons, it would be counterproductive to dissect them minutely in a way that undermines the trial judge’s responsibility for weighing all of the evidence. A trial judge’s language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations. But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components. In re-examining the evidence piece by piece, the Court of Appeal in this case confused the need for sufficiency of reasons with the examination of sufficiency of the evidence, the latter being central to the disposition of the case in Burke, Burns and R. (D.) on which it relied. In our view the reasons were sufficient. In any event, any consideration of the sufficiency of the evidence had to be founded on consideration of all of the evidence and especially the justifications for all findings of credibility, including those referable to the child and witnesses who testified in support of her, not just referable to the accused and those supporting him.	[19]    Notre Cour a sans cesse exhorté les juges de première instance à expliquer leurs conclusions sur la crédibilité et le doute raisonnable de manière à permettre un examen convenable par un tribunal d’appel. Après avoir encouragé la rédaction de motifs détaillés, il serait contraire au but recherché de scruter ceux-ci à la loupe en sapant le rôle du juge du procès dans l’appréciation de l’ensemble de la preuve. Les propos du juge de première instance doivent être examinés non seulement avec soin, mais aussi dans le contexte.  Les termes employés se prêtent la plupart du temps à de multiples interprétations et qualifications.  Cependant, l’examen en appel ne commande pas l’analyse de chaque mot, mais bien que l’on détermine si une erreur justifiant l’annulation se dégage des motifs dans leur ensemble. Il s’agit de déterminer le sens général et ordinaire de ceux-ci, et non de se livrer à l’analyse de leurs composantes linguistiques indivi-duelles. En réexaminant chacun des éléments de preuve, la Cour d’appel a confondu la nécessité de motifs suffisants avec celle d’une preuve suffisante, ce dernier élément étant au cœur des arrêts Burke, Burns et R. (D.) qu’elle a invoqués à l’appui.  À notre avis, les motifs étaient suffisants.  De toute manière, pour déterminer si la preuve était suffisante, il fallait considérer toute la preuve et, plus particulièrement, les motifs justifiant toutes les conclusions relatives à la crédibilité, y compris celles visant l’enfant et les témoins entendus à l’appui de sa version des faits, et non seulement celles se rapportant à l’accusé et à ses témoins.
[20]      Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.	[20]    Apprécier la crédibilité ne relève pas de la science exacte.  Il est très difficile pour le juge de première instance de décrire avec précision l’enchevêtrement complexe des impressions qui se dégagent de l’observation et de l’audition des témoins, ainsi que des efforts de conciliation des différentes versions des faits.  C’est pourquoi notre Cour a statué — la dernière fois dans l’arrêt H.L. — qu’il fallait respecter les perceptions du juge de première instance, sauf erreur manifeste et dominante.
[21]      This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt.   [Emphasis added.]	[21]    Cela ne veut pas dire que la cour d’appel peut se soustraire à son obligation de revoir le dossier pour s’assurer que les conclusions de fait pouvaient raisonnablement être tirées. Qui plus est, lorsque l’accusation est grave et que, comme en l’espèce, le témoignage d’un enfant contredit celui d’un adulte, qui nie les faits, l’accusé est en droit de savoir pourquoi le juge du procès écarte le doute raisonnable.   [Soulignage ajouté.]

[138]     The Court returned to the subject in R.E.M.[41] The reasons of the Chief Justice provided more guidance to appellate courts on how to treat the sufficiency of reasons when the credibility of witnesses is in issue:

[48]      The sufficiency of reasons on findings of credibility — the issue in this case — merits specific comment. The Court tackled this issue in Gagnon, setting aside an appellate decision that had ruled that the trial judge’s reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that “[a]ssessing credibility is not a science.”  They went on to state that it may be difficult for a trial judge “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”, and warned against appellate courts ignoring the trial judge’s unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge’s.	[48]    Le caractère suffisant des motifs concernant les conclusions sur la crédibilité — la question en litige en l’espèce — mérite des précisions.  Dans l’arrêt Gagnon, la Cour s’est attaquée à cette question et a annulé la décision d’un tribunal d’appel portant que les motifs du juge du procès sur la crédibilité étaient déficients.  Les juges Bastarache et Abella ont fait observer, au par. 20 : « Apprécier la crédibilité ne relève pas de la science exacte. »  Ils ont ajouté qu’il peut être difficile pour le juge du procès « de décrire avec précision l’enchevêtrement complexe des impressions qui se dégagent de l’observation et de l’audition des témoins, ainsi que des efforts de conciliation des différentes versions des faits », et ils ont mis les tribunaux d’appel en garde contre la tentation de faire fi de l’avantage dont jouit le juge du procès du fait qu’il observe et entend les témoins et de substituer leur propre appréciation de la crédibilité à celle du juge du procès.
[49]      While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization.	[49]    Bien qu’il soit utile que le juge tente d’exposer clairement les motifs qui l’ont amené à croire un témoin plutôt qu’un autre, en général ou sur un point en particulier, il demeure que cet exercice n’est pas nécessairement purement intellectuel et peut impliquer des facteurs difficiles à énoncer.  De plus, pour expliquer en détail pourquoi un témoignage a été écarté, il se peut que le juge doive tenir des propos peu flatteurs sur le témoin. Or, le juge voudra peut-être épargner à l’accusé, qui a témoigné pour nier le crime, la honte de subir des commentaires négatifs sur son comportement, en plus de celle de voir son témoignage écarté et d’être déclaré coupable. Bref, l’appréciation de la crédibilité est un exercice difficile et délicat qui ne se prête pas toujours à une énonciation complète et précise.
[50]      What constitutes sufficient reasons on issues of credibility may be deduced from Dinardo, where Charron J. held that findings on credibility must be made with regard to the other evidence in the case (para. 23). This may require at least some reference to the contradictory evidence. However, as Dinardo makes clear, what is required is that the reasons show that the judge has seized the substance of the issue. “In a case that turns on credibility . . . the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt” (para. 23). Charron J. went on to dispel the suggestion that the trial judge is required to enter into a detailed account of the conflicting evidence: Dinardo, at para. 30.   [Emphasis added.]	[50]    Ce qu’on entend par des motifs suffisants concernant la crédibilité peut se déduire de l’arrêt Dinardo, dans lequel la juge Charron a statué que les conclusions sur la crédibilité doivent être tirées au regard des autres éléments de preuve (par. 23).  Il faut peut-être pour cela que la preuve contradictoire soit à tout le moins mentionnée. Cependant, comme l’arrêt Dinardo le dit clairement, ce qui compte, c’est qu’il ressorte des motifs que le juge a saisi l’essentiel de la question en litige. « Dans une cause dont l’issue repose sur la crédibilité, [...] le juge du procès doit répondre à la question déterminante de savoir si la preuve offerte par l’accusé, appréciée au regard de l’ensemble de la preuve, soulève un doute raisonnable quant à sa culpabilité » (par. 23). La juge Charron a ensuite écarté la proposition voulant que le juge du procès doive s’engager dans un compte rendu détaillé des éléments de preuve contradictoires : Dinardo, par. 30.   [Soulignage ajouté.]

[139]     More recently still, in R. v. Vuradin,[42] Karakatsanis, J., writing for the Supreme Court, examined both the issue of sufficiency of reasons and findings of credibility, and said this:

[10]      An appellate court tasked with determining whether a trial judge gave sufficient reasons must follow a functional approach:  R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. An appeal based on insufficient reasons “will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review”:  R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25.

[10]    Une cour d’appel chargée de décider si un juge de première instance a suffisamment motivé sa décision doit appliquer une approche fonctionnelle : R. c. Sheppard, 2002 CSC 26, [2002] 1 R.C.S. 869, par. 55.  Un appel fondé sur l’insuffisance des motifs « ne sera accueilli que si les lacunes des motifs exprimés par le juge du procès font obstacle à un examen valable en appel » : R. c. Dinardo, 2008 CSC 24, [2008] 1 R.C.S. 788, par. 25.

[11]      Here, the key issue at trial was credibility. Credibility determinations by a trial judge attract a high degree of deference. In Dinardo, Charron J. explained:           Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error (see R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27, at para. 23). As this Court noted in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, the accused is entitled to know “why the trial judge is left with no reasonable doubt”… [para. 26]   [Emphasis added.]

[11]    En l’espèce, la crédibilité était la question clé au procès.  Les décisions d’un juge du procès relatives à la crédibilité commandent un degré élevé de déférence.  La juge Charron donne les précisions suivantes dans Dinardo :           Dans un litige dont l’issue est en grande partie liée à la crédibilité, on tiendra compte de la déférence due aux conclusions sur la crédibilité tirées par le juge de première instance pour déterminer s’il a suffisamment motivé sa décision. Les lacunes dans l’analyse de la crédibilité effectuée par le juge du procès, telle qu’il l’expose dans ses motifs, ne justifieront que rarement l’intervention de la cour d’appel. Néanmoins, le défaut d’expliquer adéquatement comment il a résolu les questions de crédibilité peut constituer une erreur justifiant l’annulation de la décision (voir R. c. Braich, [2002] 1 R.C.S. 903, 2002 CSC 27, par. 23). Comme notre Cour l’a indiqué dans R. c. Gagnon, [2006] 1 R.C.S. 621, 2006 CSC 17, l’accusé est en droit de savoir « pourquoi le juge du procès écarte le doute raisonnable ».  [par. 26]   [Soulignage ajouté.]

[140]     In Vuradin, the trial judge's reasons were found to be sufficient, precisely because the accused's blanket denial of the sexual assault and unlawful sexual touching charges was rejected for being untruthful and incapable of raising a reasonable doubt. In this case, however, there is far more than a blanket denial by Mr. Wilcox on the second branch of the test in Cuerrier.[43] There is extensive contradictory evidence on virtually every significant aspect of that part of the case.

[141]     While an appeal based on insufficient reasons will be reviewed for errors of law on correctness,[44] an appeal based on assessments of credibility, although commanding curial deference, requires an appellate court not to abdicate its responsibility to review the record.

[142]     I think it also worthwhile to recall the process a trial judge must follow in assessing the evidence before rendering a judgment on the merits. In this respect, I find the following summary of Healy, J.C.Q. in R. v. Santana Olivares[45] to be particularly commendable:

[7]        Il faut se rappeler d'emblée quelques principes de base. L'accusé n'a rien à prouver. La présomption d'innocence veut que personne ne puisse être trouvé coupable à moins que tous les éléments de l'infraction qu'on lui reproche soient prouvés hors de tout doute raisonnable. Peu importe qu'un doute raisonnable soit soulevé par la preuve de la poursuite, la preuve en défense ou dans l'évaluation de l'ensemble de la preuve : s'il y en a un, l'accusé doit être acquitté. À cet égard, la crédibilité des témoins a une importance capitale parce que s'il y a un doute quant à la crédibilité d'un témoin, une telle faiblesse dans le témoignage peut soulever un doute quant à un élément essentiel de l'infraction ou un moyen de défense. Face à un conflit dans la preuve, le juge de faits n'a pas à faire un choix en faveur d'une version ou d'une autre. Peut-être que cela sera le résultat dans un cas particulier si le juge en est convaincu, mais ses conclusions doivent toujours refléter un examen et une pondération de toute la preuve dans son ensemble.

[8]        La Cour suprême a donné des directives sur ces principes dans W.(D.). Dernièrement, la Cour a rappelé que la présomption d'innocence et l'évaluation de la preuve, y compris l'évaluation de la crédibilité des témoins, ne sont pas une question de forme mais de fond. Qu'un juge suive textuellement les critères élaborés dans W.(D.) ou qu'il les évalue d'une autre façon, la présomption d'innocence veut qu'il fasse une évaluation soigneuse de toute la preuve afin de savoir si l'infraction reprochée est prouvée ou s'il en reste un doute raisonnable.

[9]        L'arrêt W.(D.) n'impose pas une formule mécanique à suivre dans l'évaluation de la preuve. Dernièrement, la Cour suprême a répété cet avertissement à plusieurs reprises. Cette jurisprudence nous rappelle que la présomption d'innocence impose à la poursuite de prouver la culpabilité de l'accusé hors de tout doute raisonnable. Il incombe au juge à la fin du procès d'examiner toute la preuve produite devant la cour et de l'évaluer afin de déterminer si la poursuite s'est déchargée de son fardeau. L'accusé n'a rien à prouver et la poursuite n'est pas tenue de prouver qu'il n'y a aucun doute possible. La poursuite est tenue de prouver qu'il n'y a aucun doute raisonnable. Si à la fin du procès, et après une évaluation soigneuse de toute la preuve, y compris forcément des questions de crédibilité, il reste un doute raisonnable, l'accusé doit être acquitté. Peu importe qu'un doute raisonnable porte sur un moyen de défense ou un élément de l'infraction. S'il y a un doute raisonnable qui subsiste après une évaluation de toute la preuve, un acquittement s'impose.

[References omitted, emphasis added.]

[143]     Despite the length of the judgment, I am not persuaded that the trial judge satisfied all the objectives so well described by Healy, J.C.Q., especially those related to whether the evidence as a whole raised a reasonable doubt, which, in the circumstances, is an error of law.

[144]     The extracts from the trial judge's reasons I have reproduced at paragraph [128] indicate that the evidence raised some doubt in his mind whether the complainant participated in unprotected intercourse with Mr. Wilcox' after his HIV positive disclosure, and thus whether he would have consented if Mr. Wilcox had made such disclosure prior to their first unprotected act of intercourse. The trial judge subsequently discounted this doubt, essentially because he believed the complainant's denial, without however explaining in what way the defence evidence of an ongoing sexual relationship subsequent to disclosure did not raise a reasonable doubt. In reality, this was the only live factual issue at trial, since the defence of implicit or contextual consent was unavailable as a matter of law.

[145]     I would go further and say that a reading of the entirety of the evidence on this issue sustains the position Mr. Wilcox advances that there is a reasonable doubt as to his guilt of aggravated sexual assault. I think in particular that the trial judge erred in his interpretation of Mr. Wilcox' email to the complainant, which was an important basis on which the judge relied to convict him. To be sure, Mr. Wilcox expresses regret, and faults himself for not disclosing his status before sexual activity began, but he also writes this at the beginning of the text:

After that day on my couch when I told you that I was HIV+, I always felt guilty having unprotected sex. Each time I kept thinking that you must think that you are already positive. Looking back at the situation, I should have recognized that you were vulnerable and not thinking correctly.

All this is ancient history; I cannot change the decisions that each of us made.

[Emphasis added.]

[146]     I take the first underlined part of this extract to mean, as Mr. Wilcox testified, that each time he and the complainant engaged in unprotected sexual activity after his disclosure, the complainant must have been thinking that he was already HIV positive. From that perspective, the complainant could only have been thinking he was already HIV positive if he knew Mr. Wilcox was HIV positive. As for the second underlined part, it reflects Mr. Wilcox' contemporaneous belief that the complainant had to take responsibility for his own decision to continue to have engaged in unprotected intercourse with Mr. Wilcox knowing that he was HIV positive.

[147]     The complainant's testimony that he would not have consented to sexual activity had he known of Mr. Wilcox' HIV positive status amounts to little more than a general denial.

[148]     Mr. Wilcox' testimony is both precise and detailed in many important respects, and is often corroborated by independent sources such as:

· Mr. Wilcox' telephone records clearly contradict the complainant's testimony as to the timing of their first encounter, on which the complainant was insistent, and his credit card records render precise the time and location of their dining activities, on which the complainant was uncertain;

· the testimony of the two witnesses who attended dinner parties at Mr. Wilcox' residence after disclosure where Mr. Wilcox introduced the complainant as his boyfriend to his guests, and their testimony that the two of them acted in an amorous way with each other, events that the complainant had difficulty remembering but nevertheless disputed;

· the insistence of the complainant that he purchased condoms at the Oasis Sauna when the testimony of an employee there corroborated that of Mr. Wilcox to the effect that they were made available to customers for free.

[149]     Describing Mr. Wilcox' testimony as "vague", "general" and "argumentative", as the trial judge did at paragraph [206], is in my respectfully view unsupportable in the absence of explanation. On the contrary, a reading of the entirety of the evidence shows Mr. Wilcox to have been a much more reliable witness than the complainant, an important factor that the trial judge failed to address. Rather, the characterizations the trial judge attributed to Mr. Wilcox could well apply to the testimony of the complainant, none of whose evidence was confirmed or corroborated by independent sources.

[150]     In the latter respect, for example, the complainant's testimony about the nature of the restrained sexual activity in which he engages with his subsequent partner was susceptible of confirmation by that partner, but it was not. Nor was there independent corroboration by the production of relevant medical records of the complainant's description of the timing and the malaise he claimed to suffer subsequent to the incident of double penetration with a dildo, for which he testified he had medical consultations shortly afterwards.

[151]     Interestingly, in his article dealing with the duty of trial judges to give reasons in criminal cases,[46] Professor Stewart notes the following:

Third, a trial judge should look for independent evidence that confirms or contradicts a witness's testimony. This independent evidence does not have to be "corroborative" in the Baskerville (or pre-Vetrovec) sense; indeed, it would be an error of law to require such evidence in a sexual case. It does not even have to be confirmatory in the Vetrovec sense. But any evidence that is independent of the witness's testimony and tends to support her account should be noted, as should the absence of such evidence.[47]

[Emphasis added, references omitted.]

[152]     Professor Stewart's remarks constitute a recommendation as opposed to a requirement. The trial judge did note many of the elements that corroborated Mr. Wilcox' version of events. Indeed, the onset of the time period of the offence alleged in the indictment, which had been based on information supplied by the complainant, was changed to July 1, 2005 from August 15, 2005 based on Mr. Wilcox' testimony, again demonstrating his reliability for accuracy. Nevertheless, the trial judge took no account of the reliability of his testimony in assessing his credibility as opposed to that of the complainant, nor did he mention, let alone consider, the absence of available corroborative evidence of part of the sequence of events the complainant described.

[153]     I also note another factor that bears on the overall assessment of the credibility of Mr. Wilcox of which the trial judge took no account. Prior to the commencement of the trial, Mr. Wilcox presented a written motion to the trial judge pursuant to section 276.1 Cr.C for an order to be issued under subsections 276(1) and (2), which are to the following effect:

276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant     (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or   (b) is less worthy of belief.   (2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the evidence   (a) is of specific instances of sexual activity;   (b) is relevant to an issue at trial; and   (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.   […]

276. (1) Dans les poursuites pour une infraction prévue aux articles 151, 152, 153, 153.1, 155 ou 159, aux paragraphes 160(2) ou (3) ou aux articles 170, 171, 172, 173, 271, 272 ou 273, la preuve de ce que le plaignant a eu une activité sexuelle avec l’accusé ou un tiers est inadmissible pour permettre de déduire du caractère sexuel de cette activité qu’il est :     a) soit plus susceptible d’avoir consenti à l’activité à l’origine de l’accusation;   b) soit moins digne de foi.   (2) Dans les poursuites visées au paragraphe (1), l’accusé ou son représentant ne peut présenter de preuve de ce que le plaignant a eu une activité sexuelle autre que celle à l’origine de l’accusation sauf si le juge, le juge de la cour provinciale ou le juge de paix décide, conformément aux articles 276.1 et 276.2, à la fois :   a) que cette preuve porte sur des cas particuliers d’activité sexuelle;   b) que cette preuve est en rapport avec un élément de la cause;   c) que le risque d’effet préjudiciable à la bonne administration de la justice de cette preuve ne l’emporte pas sensiblement sur sa valeur probante.   […]

[154]     It is obvious that a motion under section 276.1 Cr.C. was necessary in light of the foregoing provisions and the defence Mr. Wilcox intended to assert.

[155]     By applying for leave to introduce evidence of his sexual activity with the complainant, however, Mr. Wilcox put himself in the unusual position of disclosing the nature of his defence before the Crown had even begun its case. This led to Crown counsel cross-examining Mr. Wilcox on what essentially was the substance of his defence before she had even called any evidence, which certainly put Mr. Wilcox at a tactical disadvantage. Once Mr. Wilcox was cross-examined, the trial judge granted his motion.

[156]      In my view, counsel for Mr. Wilcox was obliged to proceed in this manner in order to allow him to cross-examine the complainant on the same subject matter during the Crown's case. After the Crown completed its case, Mr. Wilcox again testified, this time in chief. Naturally Crown counsel again cross-examined him, this time at greater length than the first time.

[157]     Despite this disadvantage, I do not see that Mr. Wilcox' account of events with the complainant was shaken or undermined by Crown counsel's second cross-examination. Having had no choice but to expose himself to such an exercise, I think the trial judge should have at least given some consideration to the significant advantage the Crown enjoyed in this respect when assessing Mr. Wilcox' credibility.

[158]     Even with the limitations the Supreme Court has established on appellate intervention on matters of credibility, I conclude Mr. Wilcox has succeeded in identifying the kind of misapprehension of the evidence that to use the words of Fish, J. in H.L. v. Canada (Attorney General) is "palpably" or "clearly wrong", and that the trial judge's findings "are unsupported by the evidence"[48] when the evidence is reviewed as a whole.

[159]     That error stems from the following factors:

First, the trial judge giving no credit to Mr. Wilcox for the reliability of his testimony in comparison to that of the complainant;

Second, basing his finding on credibility insofar as Mr. Wilcox' is concerned only on his reticence in the past to disclose his HIV positive status, which, far from denying, Mr. Wilcox acknowledged at trial. This factor, however, is quite distinct from the evidence relating to the second branch of the charge about the details of the relationship between the complainant and Mr. Wilcox after disclosure, about which he and other witnesses he called testified, and on which the trial judge did express some doubt.

Third, misinterpreting the meaning of Mr. Wilcox' email to the complainant, which the trial judge erroneously took to be exclusively an admission of guilt, when in fact it is entirely consistent with his evidence as to the existence of post-disclosure unprotected intercourse with the complainant.

[160]     In this respect, the reasons of Kasirer, J.A. on behalf of the Court in Aksoy v. R.,[49] another case where a trial judge failed to explain why the testimony of the accused was disbelieved, are apposite:

[40]      Le juge relate certes dans ses motifs la version de l'appelant, mais il n'explique jamais pourquoi il ne le croit pas, ne laisse jamais sous-entendre qu'il trouve cette version invraisemblable ou farfelue, et ne remarque jamais de contradiction ou d'incohérence dans son témoignage. Le juge ne paraît donc jamais procéder à un examen attentif du témoignage de l'appelant. Celui-ci ne se contente pourtant pas de nier la version de Mme S...; il lui oppose un récit détaillé. Son témoignage diffère notamment de celui de Mme S... sur certains faits matériels au verdict et explique comment l'appelant aurait pu se trouver légitimement chez elle le soir du 21 ou 22 mars 2005, sans commettre l'introduction par effraction dont il a été déclaré coupable. Le juge se devait d'expliquer dans ses motifs pourquoi il écartait les explications de l'appelant. Cette omission empêche de s'assurer correctement en appel que le juge a bien accordé à l'accusé le bénéfice du doute raisonnable. Elle laisse aussi les parties dans l'incertitude quant aux motifs complets de la condamnation.

[41]      De plus, en paraissant n'accorder aucune attention au témoignage de l'appelant, le juge omet de relever une contradiction apparente entre le témoignage de l'appelant, soutenu par une preuve matérielle, et celui de Mme S.... En effet, l'appelant affirme que Mme S... a travaillé à son restaurant le 22 mars, comme le révèle une "carte de punch" déposée en preuve, alors que Mme S... nie être retournée travailler au restaurant après le 21 mars. Devant les motifs laconiques du juge, notre Cour est incapable de comprendre pourquoi cette contradiction n'a pas affecté la crédibilité que le juge accorde aux deux témoignages dans son appréciation globale du doute raisonnable.

[…]

[47]      Tout en étant conscient que les tribunaux d'appel doivent se garder de scruter les motifs à la loupe et qu'il est généralement raisonnable de tenir pour acquis que le juge du procès comprend les principes fondamentaux du droit criminel en cause dans le procès, je suis néanmoins d'avis que le juge d'instance a fait défaut d'expliquer adéquatement si "la preuve offerte par l'accusé, appréciée au regard de l'ensemble de la preuve, soulève un doute raisonnable".

[48]      Il convient de noter comment les motifs du juge en l'espèce se démarquent de ceux en litige dans l'arrêt Gagnon. Dans cette dernière affaire, la Cour suprême infirme la décision de notre Cour d'ordonner un nouveau procès pour insuffisance de motifs. Contrairement à la situation dans Sheppard, la Cour suprême est d'avis que les motifs de la juge du procès étaient suffisants dans Gagnon en raison des explications que la juge donne pour ne pas retenir le témoignage de l'accusé sur la base de sa crédibilité. Or, en l'espèce, le juge n'offre aucune explication pourquoi il ne retient pas le témoignage de M. A... On ne sait pas ici si le témoignage offert par M. A..., apprécié au regard de l'ensemble de la preuve, soulève un doute raisonnable.

[References omitted.]

[161]     In this case, beyond generalities, the trial judge never addressed why Mr. Wilcox' testimony as well as that of others about the nature of his post-disclosure relationship with the complainant did not raise a reasonable doubt whether the complainant would have consented to unprotected intercourse had disclosure been made. This was essential before a verdict of guilty could be entered. As Charron, J. observed on behalf of the Supreme Court in Dinardo:[50]

[23]      The majority rightly stated that there is nothing sacrosanct about the formula set out in W. (D.). Indeed, as Chamberland J.A. himself acknowledged in his dissenting reasons, the assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W. (D); it will depend on the context (para. 112). What matters is that the substance of the W. (D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. […]   [Emphasis added.]

[23]    La majorité a affirmé à juste titre que la démarche énoncée dans W. (D.) n’est pas une formule sacro-sainte.  En fait, le juge Chamberland a lui-même reconnu dans ses motifs de dissidence, au par. 112, que l’appréciation de la crédibilité ne se prête pas toujours à l’application des trois étapes distinctes proposées dans W. (D.); tout dépend du contexte.  Ce qui importe, c’est de respecter la substance des directives formulées dans W. (D.).  Dans une cause dont l’issue repose sur la crédibilité, comme en l’espèce, le juge du procès doit répondre à la question déterminante de savoir si la preuve offerte par l’accusé, appréciée au regard de l’ensemble de la preuve, soulève un doute raisonnable quant à sa culpabilité.  En d’autres termes, le juge du procès doit déterminer si la preuve dans son ensemble établit la culpabilité de l’accusé hors de tout doute raisonnable.  À mon avis, la meilleure façon de résoudre les problèmes de fond soulevés par la décision du juge du procès en l’espèce consiste à déterminer s’il l’a suffisamment motivée.   [Soulignage ajouté.]

[162]     Simply saying, as the trial judge did in his concluding remarks at paragraph [238], that the complainant "is believed and trustworthy" about how he would have acted had he known of Mr. Wilcox' status, does not respond to what Charron, J. described in the extract I have underlined above from her reasons in Dinardo.[51] That is not enough, especially after he had earlier characterized the complainant's evidence during the post-disclosure period as being "contradictory", "untrustworthy", "vague" and "confused".[52] In any event, what is required is not to determine the winner of a credibility contest, but a careful assessment of the entirety of the evidence, including issues of reliability and credibility, to determine whether or not a reasonable doubt exists as to the guilt of the accused.

[163]      It is also not enough to write that "the evidence is to the effect that the complainant would not at all have accepted to have any sexual intercourse with the accused if he had been advised", as if the "evidence" is uncontradicted, which it is not, or based on Mr. Wilcox' mere belief to that effect, which it plainly also is not. As was the case in Aksoy, at no point did the trial judge indicate for what reason the detailed testimony of Mr. Wilcox was disbelieved, apart from his having believed the complainant.

[164]     Although it is not an error of law for a trial judge to fail to follow the three steps of W.(D.)[53] in a ritualistic way when assessing defence evidence, it is an error of law when there is no indication that the judge has appropriately considered all three of them. I see no indication of any consideration in paragraphs [228] to [238] on the critical issue of whether the defence evidence or the evidence as a whole raised a reasonable doubt that the complainant would not have participated in sexual activity with Mr. Wilcox had he known he was HIV positive, which is one of the essential components of the actus reus of the offence. That evidence, properly considered in the manner so well described by Healy, J.C.Q.,[54] could raise a reasonable doubt and therefore could have resulted in a verdict of acquittal for the offence of aggravated sexual assault.

[165]     The effect of the trial judge's conclusion to believe the complainant is that when Mr. Wilcox testified, both in support of his motion pursuant to section 276.1 Cr.C. and as part of his own defence, he invented from whole cloth a series of events that he described in minute detail - extensive unprotected sexual activity with the complainant after disclosure - that never occurred. My reading of the evidence does not allow me to subscribe to that view. Mr. Wilcox would have to have been an audacious liar to do so, and I do not see any evidence of that in his testimony.

[166]     I therefore conclude, to paraphrase Karakatsanis, J. in Vuradin,[55] relying on Charron, J. in Dinardo,[56] that this is one of the rare cases where deficiencies in the trial judge's credibility analysis justify appellate intervention. In my view this ground of appeal therefore succeeds and warrants a new trial being ordered, as the Supreme Court did in Dinardo.

[167]     I also note that after the Court reserved judgment on the appeal, it sought the views of counsel as to whether Mr. Wilcox might be convicted of a lesser and included offence if it was of the view that he should have been acquitted of aggravated sexual assault. The basis of this inquiry stemmed from the judgment of the Nova Scotia Court of Appeal in R. v. Hutchinson,[57] in which that court considered the accused's appeal from a trial judgment that acquitted him of aggravated sexual assault but convicted him of the lesser and included offence of sexual assault. The Crown had not appealed the acquittal for aggravated sexual assault.

[168]     For the reasons of Macdonald, C.J., the majority dismissed the appeal, but Farrar, J.A., dissenting, would have ordered a new trial to determine whether Hutchinson had been properly convicted of the lesser and included offence.[58]

[169]     Since in my view a new trial should be ordered on the charge of aggravated sexual assault, it would be preferable to let a new trial judge determine, should that judge conclude that there is a reasonable doubt as to Mr. Wilcox' guilt on that charge, whether he is nevertheless guilty of a lesser and included offence arising out of his acknowledged failure to disclose his HIV positive status to the complainant prior to engaging in unprotected intercourse with him that resulted in the complainant becoming HIV positive.

VII

CONCLUDING REMARKS

[170]     In its factum, the Crown invites the Court to consider the correctness of the trial judge's decision to rescind his oral judgment on August 29, 2011 and replace it with a written judgment dated September 12, 2011. Mr. Wilcox agrees that it was wrong for the judge to have done so, but acknowledges that his counsel did not express any opposition when the judge raised the issue.

[171]     The Crown says the trial judge added the following paragraphs to what he had said orally:

[239]    The aggravating factor of the HIV infection of complainant prior to August 2005 is not established beyond a reasonable doubt. In criminal matters, there is one and only one test and probability even to a very high degree is not sufficient for a verdict of guilt. Evidence of guilt has to be established beyond a reasonable doubt. The likelihood of complainant's version does not suffice on the aggravating factor. Complainant's version of the evidence regarding the timing of the incident of the dildo penis traumatic sexual anal intercourse is shaken but not defeated or shaken anyway as to its happening. Complainant's version has been shaken as to the continuation of the sexual partnership after disclosure.

[240]    It makes a huge difference that this undoubtful causation of complainant's HIV infection may have happened only probably in July 2005 before disclosure and nonetheless possibly after disclosure. The trustworthiness of complainant's version as to most of what happened before disclosure did establish beyond a reasonable doubt the guilt of the accused on the infractions as laid.

[172]     According to what the trial judge said in the extract I have quoted at paragraph [99], he added these two paragraphs for the purpose of the sentencing judgment he would later render.

[173]     That being said, I agree with both counsel that it was improper for the trial judge to have rescinded his oral judgment and replaced it with a written one bearing a different date in which additional paragraphs were added, for the reasons eloquently stated by Rouleau, J.A. on behalf of the Ontario Court of Appeal in R. v. Wang:

[8]        The summary conviction appeal was heard on July 3, 2008 and the judge delivered oral reasons in court that same day. When the transcript of the oral reasons was released sometime later, counsel noted that the transcript, although certified as being accurate by the court reporter, contained substantial changes from the reasons delivered in open court. Counsel for the appellant, with the consent of the Crown, asked for and obtained a copy of the recording of the proceedings in court on the day judgment was delivered and had a fresh transcript prepared. A comparison between the two texts showed that there had been deletions and additions to the reasons delivered in court. While the changes did not modify the decision nor the basis for the decision, they expanded to a significant degree on the reasoning used by the summary conviction appeal judge to reach her decision. As will be seen, the changes have no impact on the outcome of the present appeal. However, because concerns regarding the editing of transcripts have, to varying degrees, been raised by either or both parties in several appeals to this court, additional comment and analysis of the issue is warranted.

[9]        In my view, it is inappropriate to modify, change or add to a transcript of oral reasons rendered in court. There may well be circumstances, such as when the original transcription is no longer available, where the improper alteration of the transcript would be sufficient to warrant ordering a new trial. That said, editing the transcript for readability and to assist in catching errors by the transcriber - not the judge - is appropriate. This would normally be limited to matters such as punctuation, grammatical errors and the like. It is not an opportunity to revise, correct or reconsider the words actually spoken and no changes of substance are to be made. It must be recalled that the transcription of oral reasons rendered in court is exactly that, a transcript of what occurred in court. The reporter preparing the transcript is called upon to certify that the transcript is "a true and accurate transcription of my recordings, to the best of my skill and ability." To seek to alter the transcript places the reporter in the invidious position of either refusing to certify the transcription or making a certification that he or she does not feel is true and accurate.

[10]      The integrity of the trial record and of in court proceedings is fundamental to the judicial system and to the transparency of those proceedings. Counsel who are present when oral reasons are delivered in court should have confidence that the decisions they make with their client based on these oral reasons will not be undermined by alterations that represent something substantially different from what in fact occurred in the courtroom. Nor should counsel, upon receiving a transcript of the oral reasons, be left to wonder whether it in fact reflects what was said in the court, or rather constitutes a version of the reasons as later modified by the judge. It is even a greater concern when the alterations to the transcript of the reasons are made after a notice of appeal has been filed: see R. v. Geesic, 2010 ONCA 365.[59].

[174]     Accordingly, I took no account of paragraphs [239] and [240] of the judgment convicting Mr. Wilcox in the preparation of my reasons.

[175]     Finally, I note that this eight-day trial on the merits, plus representations on guilt and sentence took over two and one half years to complete from the date it began on December 7, 2009 to the date the trial judge sentenced Mr. Wilcox on June 5, 2012. An accused has the right to be tried within a reasonable time as provided for in paragraph 11(b) of the Canadian Charter. Surely that provision should not be forgotten once a trial begins.[60]

VIII

PROPOSED DISPOSITION

[176]     I would allow the appeal, set aside the verdict of conviction of aggravated sexual assault contrary to paragraph 273(1)(2)(b) Cr.C. entered by the trial judge, and order a new trial.

	ALLAN R. HILTON, J.A.