In January 2023, the Court of Appeal for Ontario released its decision in the case of R. v. J.A., concerning the appeal of a man who had been convicted of two counts of first-degree murder, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault in relation to HIV non-disclosure. The Court of Appeal set aside the murder convictions and substituted verdicts of manslaughter, set aside two convictions for aggravated sexual assault and ordered a new trial on each count, and denied the appeal on the remaining eight counts of aggravated sexual assault as well as the count of attempted aggravated sexual assault.
Facts & Trial Court Decision
In December 1996, the appellant in this case learned he was HIV-positive. While the appellant accepted therapeutic medication to maintain his health, he continued to decline antiretroviral therapy (“ART”) over the years. Based on the evidence presented at trial, the appellant was “at least moderately infectious” (viral load between 20,000-40,000 copies/ml) between June 2000 and August 2003 when the sexual activity that led to the charges against him took place.
At trial, the appellant was convicted of two counts of first-degree murder, ten counts of aggravated sexual assault, and one count of attempted aggravated sexual assault as the result of engaging in penetrative sexual activity with 11 different women without disclosing that he was living with HIV and without using a condom.
The murder charges stemmed from the fact that two of the complainants who tested positive for HIV at some point following their encounters with the appellant had subsequently died of illnesses that were deemed to have been related to their HIV infection. Expert evidence based on genetic sequencing was presented at trial to demonstrate that the appellant’s and complainants’ HIV infections were the same statistically rare subtype, that they were part of the same “transmission cluster”, and that the appellant contracted the virus before the complainants. While these findings were not relied upon as “direct evidence” that the appellant had transmitted HIV to the complainant, they were nevertheless relevant to the court’s finding that he had caused the death of the two complainants.
Court of Appeal Decision
A murder conviction requires that a court be satisfied that an accused had either the direct intention to cause a person’s death or that they had an oblique intention, meaning the knowledge that death was virtually certain to result from their actions. In this case, there was no evidence that the appellant had any direct intention to kill or to cause life-threatening bodily harm to the two complainants who eventually died. Moreover, the Crown conceded on appeal that it had not presented sufficient evidence at trial that the appellant had the knowledge that his actions were “virtually certain” to cause the death of two complainants. In turn, the trial judge did not give proper instructions to the jury on the legal requirements of oblique intention. Consequently, the Court of Appeal concluded that the trial judge misdirected the jury in relation to the two first-degree murder convictions, as the judge’s instructions effectively told the jurors that they could convict “based on findings about [the appellant’s] state of mind that are legally insufficient to prove the offence of murder”.
As a result, the Court of Appeal set aside the two murder convictions and substituted manslaughter convictions. A conviction for manslaughter does not require intention to cause death – it is sufficient for a person to have intended to cause bodily harm to the deceased and for their death to have resulted from an unlawful act. In this case, the manslaughter convictions were grounded in the evidence that the two complainants’ deaths were a direct consequence of the aggravated sexual assaults committed by the appellant.
In its decision, the Court of Appeal also declined to heed the calls of the interveners – the HIV/AIDS Legal Clinic of Ontario and the HIV Legal Network – to direct trial judges to give robust and comprehensive jury charges on HIV-related medical evidence in murder cases arising from alleged HIV transmission. In particular, the interveners had sought to highlight the importance for courts to consider stigma, privacy concerns, and mental health challenges that people living with HIV face in such cases.
The Court of Appeal further ordered new trials with regard to two counts of aggravated sexual assault related to instances of unprotected oral penetration. The Court concluded that the trial judge had failed to adequately instruct the jury on one of the elements it needed to consider on these counts: whether the sexual activity in question, namely unprotected oral penetration, posed a “significant risk of serious bodily harm”. The Court could have chosen to acquit the appellant of the counts related to unprotected oral sex, but instead ordered a new trial. Troublingly, the Court relied upon the Supreme Court’s decision in Mabior to suggest that “even an extremely unlikely possibility of transmission of HIV can qualify as a realistic possibility of transmission”. As such, the Court declined to exclude the possibility of a conviction in a case of unprotected oral penetration alone, if a jury is properly instructed. This comes despite the fact that international scientific consensus has found that the possibility of HIV transmission via oral sex varies from none to negligible.
As a final point, it was argued on appeal that the appellant’s convictions must be set aside in the interests of justice due to the convictions being based upon “outdated science”. The Court of Appeal rejected this argument, concluding that while the scientific understanding of the risk posed by individuals with a suppressed viral load had developped between the time of the appellant’s initial trial in 2008 and of his appeal in 2022, this was not relevant to his case as the appellant had an unsuppressed viral load and was “moderately infectious” when he committed the offences. Ultimately, the Court ruled that there had been no material change in the scientific knowledge around the risk presented “by those who are moderately infectious.”
In R. v. J.A., a case concerning a man accused of criminal offences stemming from HIV non-disclosure, the Court of Appeal for Ontario set aside two murder convictions and substituted verdicts of manslaughter in relation to the death of two complainants. The Court also overturned two convictions for aggravated sexual assault and ordered a new trial on each count, in relation to instances of unprotected oral sex.
Regrettably, the Court of Appeal’s decision in this case leaves the door open to the possibility of a criminal conviction based on the “extremely unlikely possibility of transmission of HIV” posed by unprotected oral penetration alone, if a jury is properly instructed.
As well, the Court could have gone further in its analysis, but it disappointingly declined to direct trial judges to give comprehensive jury instructions in cases arising from alleged HIV transmission, which are sensitive to the need to combat misconceptions about the risk of HIV transmission and which acknowledge the real-world context and pressures that contribute to non-disclosure.
 R. v. J.A., 2023 ONCA 12 at para 7-8.
 Ibid, at para 9.
 Ibid, at para 1.
 Ibid, at para 1.
 Ibid, at para 16.
 Ibid, at para 16, 35.
 Ibid, at para 30.
 Ibid, at para 31.
 Ibid, at para 23.
 Ibid, at para 35.
 Ibid, at para 37.
 Ibid, at paras 61 and 63.
 Ibid, at paras 53-54.
 Ibid, at para 50.
 Barré-Sinoussi F et al., ‘Expert consensus statement on the science of HIV in the context of criminal law’, Journal of the International AIDS Society, 2018, doi.org/10.1002/jia2.25161.
 R. v. J.A., 2023 ONCA 12 at para 64.
 Ibid, at para 65.
 Ibid, at para 37.