HIV and Attempted murder, Common Sense Inferences in a Jury Charge, Aggravated Sexual Assault and the realistic possibility of transmission

Published On: Aug 24,2019

In Regina v. S.B., 2019 ONCA 652, the Court of Appeal considered the sufficiency of a trial jury’s instructions on, generally, the intersection between the transmission of HIV and any permissible inferences associated with the charge of attempted murder under the Criminal Code of Canada.    The accused was HIV positive.  The Crown’s theory was that between various months between 2009 and 2010, the accused planned to infect his sexual partners with the virus.  The accused was charged with eleven (11) counts involving six (6) complainants.


HIV and Murder, Aggravated Sexual Assault etc.
HIV and Attempted Murder Conviction Over turned by the Court of Appeal due to the jury instructions provided by the trial judge.


That matter proceeded with a Superior Court trial with the intervention of the jury.  The jury convicted him of nine (9) charges involving four (4) of the complainants, including three (3) counts of attempted murder, three (3) counts of aggravated sexual assault, two (2) counts of  administering a noxious thing, and one (1) count of attempt to administer a noxious thing (one count). The jury acquitted the accused on the charges involving the other two complainants.


The Conviction was overturned by the Court of Appeal relative to the attempted murder convictions.  That is because the trial judge misdirected the jury on the mens rea for that offence.  It was incumbent on the trial judge to tell the jury that it could convict the accused on the attempted murder charges only if satisfied beyond a reasonable doubt that the accused acted with the purpose of killing each of the complainants, or that he believed their death at some point in the future from AIDS was a virtually certain consequence of HIV infection. In this case, the trial judge failed to issue those instructions; and did not relate the evidence to the issues arising from the issue of the accused’s foreseeability of the certainty of the consequences of his acts. Her instructions on the mens rea for attempted murder “revealed non-direction, constituting misdirection”.  The Court stated, the following:


[84]      It was essential that the jury be told that it could convict the appellant on the attempted murder charges only if satisfied beyond a reasonable doubt that the appellant acted with the purpose of killing each of the complainants, or that he believed their death at some point in the future from AIDS was a virtually certain consequence of HIV infection. The trial judge did not give those instructions and did not relate the evidence to the issues arising from the issue of the appellant’s foreseeability of the certainty of the consequences of his acts.

[85]      In light of the Crown’s arguments at trial in support of the attempted murder charges, there was a real danger that without the specific instruction outlined above, that the jury would proceed on the basis that the appellant “meant” any consequence that he saw as a possible or probable consequence of HIV infection. The trial judge’s instructions with respect to the mens rea for attempted murder revealed non-direction, constituting misdirection. I would quash the attempted murder convictions.

The Court made the following further remarks concerning the common sense inferences to be drawn.  The “common sense inference” instruction given by the trial judge in respect of the attempted murder charges was inappropriate and potentially misleading in this case. That is because the  “common sense inference” instruction could be taken by the jury as an indication that it could conclude, using its own common sense, that the infection of the accused’s sexual partners and their ultimate death from AIDS were the natural and probable consequences of the accused’s actions. Both inferences went beyond what could be inferred as a matter of common sense.  Errors were also made relative to the isntructions to the jury on the administration of a noxious substance.


Based on a number of reasons, the court of appeal directed a new trial on the attempted murder charges, upheld the convictions on the three aggravated sexual assault charges, upheld the stays entered on the two (2) counts of administering a noxious thing, and set aside the stay on the charge of attempting to administer a noxious thing and directed a new trial on that count.


If you have been charged with attempted murder, aggravated sexual assault, or an offence involving the transmission of a sexual transmitted disease, contact Mr. J.S. Patel, Barrister for a confidential consultation at 403-585-1960.