R. v. Murphy, 2022 ONCA 615
WHAT YOU NEED TO KNOW
- ONCA overturns 2013 conviction for aggravated sexual assault where appellant failed to disclose HIV-positive status on basis that new scientific developments establish there was no realistic possibility of HIV transmission due to undetectable viral load, appellant on antiretroviral treatment and single incident of intercourse.
- ONCA declines to establish new common law test or make broader statement about threshold for “realistic possibility of transmission” beyond confines of this specific appeal.
- ONCA makes clear, however, that the appellant’s circumstances (on antiretroviral therapy with an undetectable viral load for an extended period of time engaging in a single act of intercourse) are not the only circumstances in which it would be open for the trial court to find that there was no realistic possibility of transmission where a condom was not used.
Background
In 2013, the appellant was convicted of one count of aggravated sexual assault for failing to disclose her HIV-positive status in the absence of using a condom.
At trial, the parties agreed that the appellant had been on antiretroviral treatment since 2001 and that by 2005, including right before and after the sexual intercourse in question, her viral load was undetectable.
The trial judge ultimately convicted Ms. Murphy on the basis that consent was vitiated by fraud because she failed to disclose her HIV status and a condom was not used. In those circumstances, the trial judge concluded there was a “realistic possibility of HIV transmission.”
The Issues and Positions on Appeal
Fresh Evidence and its application to Ms. Murphy’s case - The appellant asks this court to admit fresh expert evidence showing that there is scientific consensus that the risk of HIV transmission is effectively zero when a person is on antiretroviral treatment and their viral load is undetectable. As a result, there is no realistic possibility of transmission. The Crown consents to the admission of the fresh evidence as it relates to Ms. Murphy’s conviction.
The appellant and the Crown both request that the court allow the appeal, set aside Ms. Murphy’s conviction and enter an acquittal as there was no realistic possibility of transmission of HIV to the complainant when they had sexual intercourse.
The application of the fresh evidence beyond this appeal – The appellant asks the court to make a statement about the applicability of this fresh evidence to HIV non-disclosure cases more broadly. The Crown, on the other hand, submits that the court should decline to address situations beyond the factual circumstances of this case.
Disposition – The fresh evidence is admitted, the appeal allowed, conviction set aside and acquittal entered.
The Mabior Test
In 2013, the leading case dealing with HIV non-disclosure cases was R. v. Mabior, 2012 SCC 47. The Supreme Court of Canada held that in order to vitiate consent, three must be a sufficient risk of deprivation or bodily harm.
A significant risk of bodily harm is established where there is a “realistic possibility of transmission” from the sexual encounter at issue.
The court further held that the presence of two factors will negate a realistic possibility of HIV transmission:
(1) The accused’s viral load at the time of sexual relations was low; AND
(2) A condom was used.
The Supreme Court, however, made abundantly clear, that this threshold was based on the scientific evidence available at the time and was open to change over time as our scientific understanding of HIV transmission and treatment options evolve.
The Fresh Evidence
The admitted fresh evidence establishes that developments in the scientific understanding of HIV transmission since Mabior undermine the trial judge’s conclusion in this case that there was a realistic possibility of HIV transmission given that the appellant had an undetectable viral load and was on antiretroviral treatment. The fresh evidence establishes that, even in the absence of a condom, a single act of vaginal intercourse when the appellant was on antiretroviral therapy and her load was undetectable, does not present a risk of transmission to the complainant.
Application of the Fresh Evidence Beyond this Appeal
The appellant asks this court to conclude that, as a matter of development of the common law of the “realistic possibility of transmission” test, that a realistic possibility of transmission is negated when a person has a low viral load and is on antiretroviral therapy (i.e. that condom use is not required in these circumstances).
Ultimately, the court declined to do so, concluding it would not be appropriate to make a broader finding beyond what is needed to dispose of the appeal. The court reached this conclusion for the following reasons:
(1) The role of fresh evidence - Fresh evidence is admissible to the extent it may call into question the reliability of factual findings essential to the verdict rendered at trial. It would be inconsistent with the role of fresh evidence in our appellate system to rely on fresh evidence to go beyond what is necessary to decide the appeal.
(2) The role of trial courts – Similarly, trial courts are better placed than appellate courts to develop and assess a factual record. The dynamic nature of trial court is better-suited to ensuring that a factual record is sufficient to decide the relevant issues.
(3) The state of the factual record – The fresh evidence in this case has certain limitations that militate against relying on the fresh evidence beyond the scope of the appellant’s case. For example, the fresh evidence is premised on a single occasion of vaginal intercourse. It is therefore not clear on the record before the court whether multiple occasions of sexual contact would increase the risk of transmission and to what extent.
That being said, the court makes clear that the decision to decline to make a broader statement should not be read as finding that the appellant’s circumstances (on antiretroviral therapy with an undetectable viral load for an extended period of time engaging in a single act of intercourse) are the only circumstances in which it would be open for the trial court to find that there was no realistic possibility of transmission where a condom was not used. On a proper evidentiary record, it would be open to a trial court to find other circumstances in which there is no realistic possibility of transmission even in the absence of condom use.
Read the full decision here.