WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c.
    13, s. 18.

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater
    certainty, an order referred to in subsection (1) applies to prohibit, in
    relation to proceedings taken against any person who fails to comply with the
    order, the publication in any document or the broadcasting or transmission in
    any way of information that could identify a victim, witness or justice system
    participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Boone, 2019 ONCA 652

DATE: 20190812

DOCKET: C63062

Doherty, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Steven Paul Boone

Appellant

Jonathan Shime and Ben ElzingaCheng, for the appellant

Christine Tier, for the respondent

Khalid Janmohamed and Ryan Peck, for the interveners
    Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario

Heard: November 26, 2018

On appeal from the convictions entered by Justice Bonnie R.
    Warkentin of the Superior Court of Justice, sitting with a jury, on October 31,
    2012, and from the sentence imposed on March 9, 2016, with reasons reported at
    2016 ONSC 1626.

Doherty J.A.:

I

overview

[1]

The appellant is HIV positive. The Crown alleged that in late 2009 and
    early 2010, the appellant set out to infect his sexual partners with HIV.

[2]

The appellant faced an 11-count indictment involving six complainants.
    The jury returned guilty verdicts on nine charges involving four complainants
    and acquitted on two charges involving the other two complainants. The charges
    and verdicts are set out in chart form below.

Count

Complainant

Charge

Verdict

1

D.S.

Aggravated sexual assault

Guilty

2

D.S.

Administer a noxious thing

Guilty (stayed)

3

D.S.

Attempted murder

Guilty

4

M.C.

Aggravated sexual assault

Guilty

5

M.C.

Administer a noxious thing

Guilty (stayed)

6

M.C.

Attempted murder

Guilty

7

M.B.

Attempt to administer a noxious thing

Guilty (stayed)

8

M.B.

Attempted murder

Guilty

9

B.C.

Aggravated sexual assault

Guilty

10

D.F.

Aggravated sexual assault

Not Guilty

11

J.B.

Aggravated sexual assault

Not Guilty
[1]

[3]

The trial judge concluded that a global sentence of 14 years was
    appropriate. After credit for presentence custody, the trial judge imposed a
    net sentence of nine years, three months. She also imposed a long-term
    supervision order for an additional five years.

[4]

The appellant appeals his convictions with two exceptions. He does not
    appeal the conviction on the charge of aggravated sexual assault involving D.S.
    (count one) and he does not appeal the conviction on the aggravated sexual assault
    charge involving M.C. (count four). The appellant also appeals sentence.

[5]

The Crown does not appeal the two acquittals. I need not make any
    reference to the evidence relating to those counts.

II

the positions at trial

[6]

The Crowns case at trial consisted of the evidence of the complainants,
    two men who shared a townhouse with the appellant, hundreds of text messages to
    and from the appellant, some of which involved the complainants, and expert
    evidence from Dr. Robert Remis, an expert in matters relating to HIV.

[7]

The appellant did not testify. The defence called Dr. Mark Tyndall, also
    an expert in matters relating to HIV.

[8]

The appellant was 28 years of age when he learned that he was HIV
    positive in October 2009. According to his texts and his roommates, the
    appellant had been in a serious relationship with the person who infected him.
    He described himself as making the ultimate sacrifice for his partner. The
    appellant told his roommates and others about his HIV status.

[9]

After learning that he was HIV positive, the appellant continued to have
    an active sex life. He did not use condoms. He met most of his partners on
    various dating websites. While most of the encounters were casual one-night
    stands, some of his texts suggested the appellant was looking for, perhaps
    even desperate for, a more long-term, meaningful relationship. He made similar
    comments to his roommates.

[10]

The
    appellant spent time online immersed in what was referred to at the trial as
    the bug-chasing culture. This phrase refers to persons who are sexually
    aroused by the idea of infecting others and being infected by others with HIV.

[11]

In
    numerous texts, the appellant bragged about infecting many young men with HIV.
    He referred to his high viral load and his reluctance to take antiretroviral
    drugs because they would make it more difficult for him to infect his partners.
    The appellant also indicated that he routinely lied to his partners about his
    HIV status so they would agree to unprotected anal intercourse. He also
    described how he would deliberately misuse or sabotage condoms to trick his
    partners into thinking they were having protected sex.

[12]

The
    appellants online chats are replete with comments about infecting partners
    with HIV. A sampling is set out below:

I love turning dudes poz
[2]
feels intense knowing Im marking them for life with my dna

I want a neg
[3]
boy to turn poz so hes mine

I want to fuck you bare until you become poz with my poz loads
[4]

Make you my poz boy for life

Ill be changing you forever

I have a high viral load right now meaning it wont take much
    for you to get it from me

Might get infected from the first fuck because my viral load is
    high and not on meds
[5]

[13]

In
    some of the text messages, the appellant spoke of infecting others with HIV and
    getting a biohazard tattoo with his initials and his partners initials on the
    tattoo.

[14]

At
    trial, the defence argued that the texts were in the main exchanges between
    individuals who frequented certain websites because they would find others who
    were sexually aroused by conversations about being infected with HIV and
    infecting others with HIV. The defence maintained that the conversations were
    fantasy and roleplaying. They were full of comments that were demonstrably
    false. M.B. and J.B., two of the complainants called by the Crown, used these
    websites for exactly that kind of fantasy roleplaying. The defence submitted to
    the jury that most things said on those websites could not safely be relied on
    for their truth, or as indicative of the appellants true state of mind.

[15]

The
    defence did, however, rely on some comments made by the appellant in the texts.
    For example, the defence submitted that the appellants comments showed that he
    knew HIV could lead to AIDS, a disease that could be managed and lived with by
    the administration of appropriate drugs. It was not, as it once was, a disease
    that inevitably killed those who suffered from it. The defence submitted that
    these comments were inconsistent with an intention to kill those he infected.

[16]

The
    Crown put forward a different interpretation of the text messages. The Crown
    argued to the jury that the appellants repeated statements should be taken at
    face value. He deliberately and repeatedly engaged in very high-risk sexual
    activities, intending to infect his partners with HIV. He lied to those
    partners about his HIV status to achieve that end. The Crown argued that the
    appellants text messages showed that he was sexually aroused by, and deeply
    committed to, spreading HIV to his sexual partners. He knew that HIV eventually
    led to AIDS, a fatal disease. He set out to infect others and eventually cause
    their death to satisfy his own perverse sexual desires.

[17]

The
    appellant never expressly indicated he wanted to, or intended to, kill anyone
    in his text messages. However, the Crown contended that the jury could infer
    that intention from repeated statements made in the texts about the desire to
    infect partners, combined with the appellants knowledge of the consequences of
    infection.

III

the evidence of the complainants

A.

D.S. (Counts 1, 2 and 3)

[18]

D.S.
    was seventeen years old when he met the appellant on the internet in January
    2010. They had unprotected anal sex nine times in late January and early
    February 2010. On each occasion, D.S. was the receptive partner and the
    appellant was the insertive partner. The appellant ejaculated into D.S.s anus
    on seven occasions.

[19]

The
    appellant repeatedly assured D.S. that he was clean. D.S. would not have had
    anal intercourse with the appellant had he known he was HIV positive.

[20]

Some
    of the appellants texts referred to his sexual activity with D.S. He described
    filling D.S. with semen and stated that D.S. did not know he was HIV positive.

[21]

D.S.
    learned that the appellant was HIV positive in February and confronted him. The
    appellant initially denied being HIV positive, but later admitted to D.S. that
    he had lied to him about his status.

[22]

D.S.
    was not HIV positive when he met the appellant. He tested positive for HIV in
    April 2010. D.S. had sexual relations with other men between the end of his
    relationship with the appellant and his positive HIV test. Dr. Remis, after
    examining the details of D.S.s sexual contacts with others, agreed that it was
    highly likely that the appellant infected D.S.

[23]

D.S.
    will be on antiretroviral medication for the rest of his life. Dr. Remis cited
    a study that found the life expectancy of HIV-infected individuals is about 12
    years shorter than that of non-infected individuals.

[24]

The
    defence accepted that the appellant repeatedly had unprotected anal intercourse
    with D.S. and did not reveal his HIV-positive status to D.S. Those facts
    warranted a conviction on the aggravated sexual assault charge (count 1): see
R.
    v. Mabior
, 2012 SCC 47, [2012] 2 S.C.R. 584. The appellant has not
    appealed that conviction. He does appeal his convictions on attempted murder
    (count 3) and administering a noxious thing (count 2).

B.

M.C. (Counts 4, 5 and 6)

[25]

M.C.
    was seventeen years old when he met the appellant on the internet. They agreed
    to meet and have sex. The appellant repeatedly told M.C. that he was clean.
    M.C. and the appellant met at the appellants home. They had oral sex without
    condoms. Neither ejaculated. The appellant anally penetrated M.C. twice and
    ejaculated into M.C. both times. He was not wearing a condom.

[26]

M.C.
    was only interested in a one-night stand. He resisted the appellants
    attempts to establish a more serious relationship.

[27]

One
    of the appellants roommates told M.C. that the appellant was HIV positive.
    When confronted by M.C., the appellant lied and denied that he was HIV
    positive. M.C. subsequently tested negative for HIV. M.C. would not have
    engaged in sexual activity with the appellant had he known the appellant was
    HIV positive.

[28]

The
    defence accepted that the appellant had unprotected anal intercourse with M.C.
    and did not reveal his HIV-positive status to M.C. The appellant has not
    appealed the conviction on the aggravated sexual assault charge involving M.C.
    (count 4). He does appeal the convictions for attempted murder (count 6) and
    administering a noxious thing (count 5).

C.

M.B. (Counts 7 and 8)

[29]

M.B.
    and the appellant met over the internet in 2009. They re-established contact in
    March 2010. M.B. was HIV positive in 2010. He saw the appellants profile on a
    website called Manhunt. The profile said that the appellant was HIV positive.
    M.B. contacted the appellant, hoping they could get together for sex.

[30]

In
    March 2010, the appellant confirmed to M.B. that he was HIV positive and not
    taking any medication. M.B. lied to the appellant and told him that he thought
    he was HIV negative, but wanted to have unprotected sex. According to M.B., he
    lied to the appellant because he thought the appellant was sexually aroused by
    the idea of infecting others. The appellant had not said anything in his texts
    about wanting to infect M.B.

[31]

The
    appellant and M.B. eventually met. They had unprotected anal intercourse. M.B.
    testified that he was playing into the appellants fantasy about infecting his
    partners with HIV.

[32]

M.B.
    and the appellant had unprotected anal intercourse on one more occasion. On both
    occasions, it was the appellant who anally penetrated M.B. He ejaculated into
    M.B.

[33]

The
    appellant wanted a relationship with M.B. M.B. wanted nothing more than sex.
    M.B. decided to stop communicating with the appellant. They did not meet after
    March 15, 2010.

[34]

M.B.
    contacted the police after he saw news articles about the appellant. In his
    interview with the police, he falsely claimed that the appellant had not
    disclosed his HIV status to him and that he would not have consented to sex had
    he known the appellants status. M.B. acknowledged that he was confronted with
    his lies before he testified at the preliminary inquiry and that he may have
    lied under oath had he not been confronted before the preliminary inquiry with
    his lies to the police.

[35]

The
    appellant appeals both his conviction for attempted murder (count 8) and his
    conviction for attempting to administer a noxious thing (count 7).

D.

B.C. (Count 9)

[36]

B.C.
    met the appellant online in December 2009 and shortly thereafter in person. The
    appellant assured B.C. that he was HIV negative.

[37]

B.C.
    and the appellant engaged in anal intercourse on one occasion. The appellant
    penetrated B.C. B.C. insisted that the appellant use a condom. He saw the
    appellant put the condom on before sex and remove it afterward. B.C. could not
    say for sure whether the appellant ejaculated.

[38]

There
    was no direct evidence that the appellant somehow compromised the condom he
    used or deliberately misused the condom when he had sex with B.C. The Crown
    argued, however, that many comments made by the appellant in his texts, in
    which he bragged about poking holes in his condoms and tricking his partners
    into thinking he was using a condom, provided evidence from which the jury
    could infer that he used one of those tricks after B.C. insisted that he use
    a condom.

[39]

A
    short time after they had sex, B.C. saw a newspaper article about the
    appellant. The article indicated the appellant was HIV positive. B.C. was
    tested on three occasions and was HIV negative. He would not have consented to
    sex, even with a condom, had he known the appellant was HIV positive.

[40]

The
    appellant appeals his conviction for aggravated sexual assault (count 9).

IV

The Expert Evidence

[41]

The
    two experts, Dr. Remis for the Crown, and Dr. Tyndall for the defence, agreed
    on most matters.
[6]
They agreed that HIV is incurable and, if untreated, leads to AIDS which will
    cause death within 10 to 15 years of infection. The arrival of antiretroviral
    drugs in the mid-1990s drastically reduced the mortality rate due to AIDS. With
    the proper use of that medication, HIV is a long-term, manageable illness.
    People with HIV can live healthy lives. However, the drugs are not effective
    for everyone and some people cannot tolerate them.

[42]

Even
    with drug therapy, HIV reduces life expectancy by 12 years. The younger a
    person is when he or she contracts HIV, the more significant the impact on life
    expectancy.

[43]

Receptive
    anal sex carries the highest risk of transmission of HIV. Oral sex carries the
    lowest risk. Condoms can reduce the risk of HIV transmission by 80 percent or
    more. If a condom is properly applied and used, the risk reduction is much
    closer to 100 percent.

[44]

Ejaculation
    increases the risk of infection because of the volume of bodily fluid
    containing the virus. Pre-ejaculate also carries some, but a lesser risk of
    infection.

[45]

The
    higher the infected persons viral load, the greater the risk that a sexual
    partner will be infected with HIV. A low viral load is fewer than 1,500 copies
    per millilitre of blood. The appellant had a high viral load at the relevant
    time of over 50,000 copies per millilitre of blood. He was aware of his high
    viral load and its relationship to the risk of infecting his partners.

[46]

The
    presence of other sexually transmitted diseases increases the risk that an
    infected person will transmit HIV to a sexual partner. The appellant tested
    positive for gonorrhea in May 2009 and again in April 2010.

[47]

Dr.
    Remis calculated the risk of transmission of HIV from the appellant to each of
    the complainants based on the sexual activity described by the complainants and
    using a per-act risk taken from different scientific studies. Dr. Remis estimated
    D.S.s risk at 8.6 percent, M.C.s risk at 2 percent, B.C.s risk at 0.2
    percent, and M.B.s risk, had he not already been infected with HIV, at 2 percent.
    Dr. Tyndall agreed with these estimates.

V

THE CONVICTION APPEAL

A.

Did the trial judge misdirect
    the jury on the
mens rea
for attempted murder?

[48]

The
    appellant was convicted on three counts of attempted murder. Those convictions
    were the main focus of the appeal. The appellant alleges several specific
    errors. Broadly speaking, he contends that the trial judges instructions on
    the necessary intent for murder, while appropriate in the context of a typical
    attempted murder allegation, were inadequate and misleading as applied to the unique
    allegations of attempted murder put forward by the Crown in this case.

(i)

The
    elements of the crime of attempted murder

[49]

The
    crime of attempted murder requires proof beyond a reasonable doubt that the
    accused intended to kill, coupled with conduct by the accused done for the
    purpose of carrying out that intention. The conduct must amount to some act
    more than merely preparatory:
Criminal Code
, R.S.C. 1985, c. C-46, s.
    24;
United States of America v. Dynar
, [1997] 2 S.C.R. 462, at para.
    50;
R. v. Gordon
, 2009 ONCA 170, 94 O.R. (3d) 1, at para. 56. The
    point at which an accuseds actions pass beyond preparation to the
actus reus
component of an attempt to commit the crime is difficult to identify in the
    abstract: see Eugene Meehan, Marie-France Major & John H. Currie,
The
    Law of Criminal Attempt
, 3rd ed. (Toronto: Carswell, 2015), ch. 5. The
    conduct component need not be itself criminal or even unlawful:
The Queen
    v. Ancio
, [1984] 1 S.C.R. 225, at p. 248;
Gordon
, at para.
    56;
R. v. Colburne
(1991), 66 C.C.C. (3d) 235 (Qc. C.A.), at pp.
    248-49, Proulx J.A.

[50]

The
actus reus
component of the attempted murder charges was not in dispute
    at trial. The trial judge correctly instructed the jury that if they were
    satisfied beyond a reasonable doubt that the appellant had ejaculated into the
    anuses of D.S., M.C. and M.B., that act provided the conduct component of the
    crime of attempted murder. The defence accepted that the appellant had
    unprotected anal intercourse with the three complainants and that he had
    ejaculated into them.

[51]

The
    outcome of the attempted murder charges depended on whether the Crown had
    proved beyond a reasonable doubt that the appellant had the necessary
mens
    rea
for the offence of attempted murder. The crime of attempted murder
    requires proof of the specific intent to kill. The intention to inflict harm,
    even significant harm, combined with recklessness as to the consequence of
    inflicting that harm, does not suffice to establish the
mens rea
for
    attempted murder:
Ancio
, at pp. 248-51.

[52]

When
    can it be said that a person intends to kill? Certainly, a person whose purpose
    is to kill another, either as an end in itself or as a means to achieving some
    further end, has the intention to kill. However, and subject to the language of
    the provision creating the offence, courts have extended this everyday
    conception of intention to include the decision to carry out some purpose in
    the knowledge that killing is virtually certain to result, although the killing
    is neither the ultimate purpose in acting, nor the means chosen to achieve the
    desired purpose, and may even be deeply regretted. That is, the law treats as
    intended those side-effects that are foreseen to occur with virtual certainty.

[53]

The
    well-used example of the package on the airplane usefully draws the distinction
    between the two notions of intent. A places a bomb on a plane intending that
    it will explode while the plane is in mid-air. He has placed a package on the
    plane and intends to make an insurance claim when the package is destroyed in
    the explosion. A also believes, to a virtual certainty, that the persons on
    the plane will die when the bomb explodes, although he does not want them to
    die and actually hopes that they will somehow survive. As direct intention
    is to defraud his insurer. Whether his state of mind is described in terms of
    accepting the deaths as a regrettable but virtually certain side-effect to
    achieving his actual purpose of defrauding the insurer, or as an oblique or
    indirect intention to kill the occupants of the plane, it is properly
    characterized as intention for the purposes of the criminal law: see Dennis J. Baker,
Glanville Williams Textbook of Criminal Law
, 4th ed. (London, U.K.:
    Sweet & Maxwell, 2015), at pp. 113-22; Glanville Williams, Oblique
    Intention (1987) 46:3 Cambridge L.J. 417; see also Andrew Ashworth,
Principles
    of Criminal Law
, 5th ed. (New York: Oxford University Press, 2006), at
    pp. 174-81; David Ormerod,
Smith and Hogans Criminal Law
, 13th
    ed. (New York: Oxford University Press, 2011), at pp. 108-16, 405-06; Don
    Stuart,
Canadian Criminal Law: A Treatise
, 7th ed. (Toronto: Carswell,
    2014), at pp. 249-51.

[54]

In
R. v. Buzzanga and Durocher
(1979), 49 C.C.C. (2d) 369 (Ont. C.A.),
    this court considered the
mens rea
requirement on a charge of wilfully
    promoting hatred against an identifiable group. Martin J.A., after examining
    the language of the section and the statutory context, concluded, at p. 381,
    that the word wilfully meant with the intention of. He proceeded, at pp. 384-85,
    to articulate, with his customary clarity, the dual meaning of intention:

I agree, however (assuming without deciding that there may be
    cases in which intended consequences are confined to those which it is the
    actors conscious purpose to bring about), that, as
a
    general rule, a person who foresees that a consequence is certain or
    substantially certain to result from an act which he does in order to achieve
    some other purpose, intends that consequence
. The actors foresight of
    the certainty or moral certainty of the consequence resulting from his conduct
    compels a conclusion that if he, none the less, acted so as to produce it, then
    he decided to bring it about (albeit regretfully), in order to achieve his
    ultimate purpose. His intention encompasses the means as well as to his
    ultimate objective.

I conclude, therefore, that the appellants wilfully
    (intentionally) promoted hatred against the French Canadian community of Essex
    County only if:
(a) their conscious purpose in
    distributing the document was to promote hatred against that group, or (b) they
    foresaw that the promotion of hatred against that group was certain or morally
    certain to result from the distribution of the pamphlet
. [Emphasis
    added.]

[55]

Martin
    J.A.s formulation of intention as including both purpose and foresight of virtually
    certain consequences was adopted by the Supreme Court of Canada in
R. v.
    Keegstra
, [1990] 3 S.C.R. 697, at pp. 774-75, also a case involving
    the offence of wilfully promoting hatred. In
R. v. Chartrand
, [1994] 2
    S.C.R. 864, at pp. 889-90, that court again adopted Martin J.A.s words in
    defining intention in respect of the offence of unlawfully taking a child under
    14 with intent to deprive a parent of possession of that child. LHeureux-Dubé J.
    defined the phrase with intent to in this way, at p. 414:

General principles of
mens rea
apply to the words
    with intent to, and, accordingly, in order to conclude that the
mens rea
of the offence under s. 281 has been made out, it is sufficient that the taker
    knows or foresees that his actions would be certain or substantially certain to
    result in the parents (guardians, etc.) being deprived of the ability to
    exercise control over the child.

[56]

The
    case law and academics use different phrases, including morally certain,
    virtually certain and substantially certain. Insofar as they are used to
    describe oblique or indirect intent, I take them to have the same meaning. I
    prefer the phrase virtual certainty, as to me it best connotes the very high
    degree of certainty required.

[57]

The
    mental state predicated on a belief that a result is a virtually certain consequence
    of ones action must be distinguished from recklessness as to consequences. Recklessness
    refers to a state of mind in which a person decides to do an act, realizing
    that a specific consequence may flow from that act. Indeed, the person may
    realize that the consequence will probably flow from that act. That person is said
    to be reckless as to the consequence. Recklessness will suffice to establish
    criminal culpability for many offences. Recklessness is not, however, to be
    equated with intention based on a belief in the virtual certainty that the
    consequences will flow:
Buzzanga
, at p. 384. The
mens rea
required for attempted murder is not satisfied by recklessness as to the
    consequence. A person who appreciates that his acts may, or probably will, lead
    to the victims death is not guilty of attempted murder unless killing his
    victim was his purpose:
Ancio
, at pp. 248-51.

[58]

Some
    argue that oblique intent is a misnomer in that it does not describe a distinct
    culpable state of mind, but rather refers to a state of mind  a belief that a
    specific consequence is certain  which provides powerful evidence of an actual
    or direct intention to bring that consequence about: see Beatrice Krebs,
    Oblique Intent, Foresight and Authorisation (2018) 7 U.C.L.J.L.J. 1; Glenys
    Williams & Gavin Dingwall, Inferring Intention (2004) 55:1 N. Ir. Leg. Q.
    69. Professor Stuart goes so far as to describe the distinction between direct
    and indirect or oblique intent as pedantic and unnecessary in the real world
    of criminal trials and jury instructions: Stuart, at p. 250.

[59]

I
    accept that in most attempted murder cases, there will be no need for the trial
    judge to distinguish between an accuseds purpose and an accuseds belief as to
    the certainty of the consequence of his act when explaining to the jury the
mens
    rea
required for attempted murder. In most cases, it will be enough that
    the jury understand that if they conclude that the accused believed his actions
    would certainly lead to the victims death, that belief provided powerful evidence
    of the intention to kill.

[60]

In
    my view, however, the distinction can be important if the evidence in the case suggests
    that the accused acted with a purpose other than to cause the death of the victim.
    In that kind of case, the jury needs more help with the meaning of intend to
    kill. The jury must understand that a purpose other than a purpose to kill,
    even a desire not to kill, does not necessarily exculpate on a charge of
    attempted murder. It is equally important that the jury understand that in the
    absence of proof that the accuseds purpose was to kill, the Crown can succeed
    only by demonstrating beyond a reasonable doubt that the accused believed that
    the victims death was a virtually certain consequence of his actions.

[61]

There
    is no impediment to holding that the intention to kill for the purposes of
    attempted murder encompasses both forms of intention described in
Buzzanga
.
Ancio
, which firmly rejects recklessness as a basis for the
mens
    rea
of murder, does not consider whether a belief in a virtual certainty that
    a consequence will occur can be a form of intent. There is English authority
    that accepts that oblique intent will suffice for attempted murder: see
R.
    v. Walker
(1989) 90 Cr. App. R. 226.

[62]

Nor
    is there any policy basis for distinguishing between the two forms of intent
    described in
Buzzanga
. A person who decides to commit an act believing,
    to a virtual certainty, that the act will cause the death of another is surely
    as culpable as a person who acts for the purpose of killing another. Indeed,
    the two states of mind are so clearly compatible that in many cases if one
    exists, so will the other.

[63]

Most
    significantly, this court, in an earlier appeal brought by the appellant, has
    held that oblique intent, as described in
Buzzanga
, can support a
    conviction on the attempted murder charges. The appellant was discharged at his
    preliminary inquiry on the attempted murder charges. The Crown successfully brought
    a motion to quash the discharges:
R. v. Boone
, 2011 ONSC 5889. On a
    further appeal by the appellant, this court affirmed the decision of the
    Superior Court:
R. v. Boone
, 2012 ONCA 539. Simmons J.A., speaking for
    the full court on this issue, described the appellants potential liability for
    attempted murder in these terms, at para. 36:

If the appellant believed that by infecting his sexual partners
    his conduct would, in the absence of intervening circumstances that might cause
    their death, inevitably kill them, in my view, it would be open to a trier of
    fact to find that he possessed a specific intent to kill.

(ii)

The
    positions of the parties at trial on the attempted murder counts

[64]

As
    I read Crown counsels closing argument to the jury, she did not specifically invite
    the jury to find that the appellant set out to infect and kill his sexual
    partners. In other words, she did not argue that the appellants purpose in
    infecting his partners was to kill them. She argued for a form of intention
    akin to the oblique intent described in
Buzzanga
.

[65]

For
    example, Crown counsel said:

Mr. Boones specific desire is to infect people. His motive is
    the satisfaction of his own perverse sexual desires, and he
knows that by infecting these men it is predictable that the
    HIV infection will cause their deaths. Of course he knows this. Everyone knows
    this. He sets about trying and hoping to infect them, doing the very thing that
    he knows can kill them  certainly will kill them, absent medical intervention
.
    [Emphasis added.]

[66]

As
    I understand it, the Crowns case rested essentially on this chain of
    reasoning:

·

the appellant intended to infect his sexual partners with HIV;

·

to maximize the chances of achieving that goal, he lied to his
    partners about his HIV status, engaged in unprotected anal intercourse, knowing
    that he had a very high viral load and continued to lie to his partners about
    his status, thereby reducing the likelihood that the partners would seek
    medical assistance;

·

he believed that HIV could lead to AIDS, a deadly disease; and

·

he believed that without treatment, death from AIDS was an
    inevitable consequence at some point in the future.

[67]

The
    defence argued that there was no evidence that the appellant wanted to or meant
    to kill his partners in the sense that their death was his purpose or the desired
    outcome. As counsel put it: Mr. Boone wanted to date them, not kill them.

[68]

Defence
    counsel also addressed the oblique intention theory of liability:

[U]nlike the scenario where the gun is placed to the head and
    death is almost certain, the same cannot be said for contracting HIV. Is death
    a possibility? Sure it is. Did Mr. Boone know that? He did. But is death
    probable or predictable such that you can infer he had specifically intended to
    kill these men? No.

(iii)

The trial judges instruction

[69]

In
    her instructions,
[7]
which were in many respects a model of clarity, the trial judge told the jury:

The crime of attempted murder requires proof of a particular or
    specific state of mind. Crown counsel must satisfy you beyond a reasonable
    doubt that when he did the things that amount to an attempt,
Mr. Boone meant to kill [D.S.], [M.C.] and/or [M.B.]. Nothing
    less will do.
[Italics in original; underlining added.]

[70]

In
    the course of their deliberations, the jury asked:

[I]n the case of attempted murder, where state of mind is
    important, does killing the person need to be the primary goal of the act in
    order to find a verdict of guilty?

[71]

The
    trial judges answer reinforced the earlier instructions about the nature of
    the intent required for attempted murder:

A person may act with more than one intent. Killing the person
    does not have to be the primary intent. However, Crown counsel must satisfy you
    beyond a reasonable doubt that when he did the things that amount to an
    attempt, Mr. Boone meant to kill [D.S.], [M.C.] and/or [M.B.]. Nothing less
    will do.

[72]

The
    trial judge offered no further explanation of the requisite intent beyond
    repeated references to the requirement that the Crown prove that the appellant
    meant to kill. She did tell the jury that they could (not must) infer that
    the appellant intended the natural and probable consequences of his act. The
    trial judge also reviewed the evidence pertaining to the appellants desire to
    infect others, his knowledge of the effects of HIV, the expert evidence and
    other evidence that might provide insight into the appellants intention when
    he had sex with each of the complainants named in the attempted murder charges.

(iv)

The appellants arguments

[73]

The
    appellant alleges five specific errors. He submits that the trial judge failed
    to distinguish between an intention to infect a sexual partner with HIV and an
    intention to kill that partner. Only the latter could justify a conviction for
    attempted murder. The appellant further contends that the trial judge failed to
    make it clear to the jury that the Crown had to prove an intention to kill and
    that nothing less than an intention to kill would suffice. The appellant argues
    that the trial judge should have told the jury that an intention to infect with
    HIV and thereby cause harm, even serious harm, was not enough. Nor was it
    enough that the appellant may have foreseen the risk, or even the probability
    of death.

[74]

The
    other three arguments put forward by the appellant are directed at the manner
    in which the trial judge related the evidence to the
mens rea
requirement for attempted murder. The appellant submits that, on the evidence
    adduced in this case, the common sense inference instruction that a person
    intends the natural consequences of his act had no place and was misleading.
    The appellant also argues that the trial judge did not adequately relate the
    expert evidence concerning infection rates and the likelihood of death as a
    result of being infected to the
mens rea
requirement. Finally, the
    appellant submits that the trial judge should have cautioned the jury about
    drawing inferences as to the appellants state of mind exclusively from
    circumstantial evidence.

(v)

Analysis

[75]

Jury
    instructions must equip the jury with the information needed to properly decide
    the case. The trial judge must explain the legal principles and relate those
    principles to the issues and evidence that arise in the case. In most attempted
    murder prosecutions, as counsel for the appellant acknowledges, it will be
    enough for the trial judge, when explaining the intent required for attempted
    murder, to track the language of s. 229(a)(i) of the
Criminal Code
.
    The trial judge will instruct the jury that the Crown must prove that the
    accused meant to (or was trying to) kill the victim. The trial judge took
    that approach.

[76]

I
    agree with counsel for the appellant that this was a case in which a more
    detailed explanation of the
mens rea
component of attempted murder was
    necessary. While telling the jury the appellant must have meant to kill the
    complainants would clearly include a finding that when the appellant infected
    his partners, he did so with the purpose of killing them, that was not the
    primary basis upon which the Crown advanced its case of attempted murder. The Crown
    repeatedly spoke in terms of the appellants belief with respect to the
    consequences of intentionally infecting his sexual partners. The Crown referred
    to the appellants belief that death was at least a predictable consequence
    of infection. The Crown also put the appellants liability for attempted murder
    in these terms:

[H]e deliberately tried to do something he knew would probably
    ultimately kill his victims, and he did it anyway. From this, you can
    absolutely conclude that every time he tried to infect one of his victims, he
    did so with the intent to kill.

[77]

As
    the Crowns main theory on the attempted murder was predicated on the
    appellants belief as to the consequences of his actions, it was incumbent on
    the trial judge to tell the jury exactly what the Crown had to prove beyond a
    reasonable doubt to establish the requisite intent on the theory advanced by
    the Crown. The Crown had to prove that:

·

the appellant intended to infect each of the complainants with
    HIV; and

·

the appellant believed, absent medical intervention, that death at
    some point in the future was a virtual certainty as a consequence of
    contracting HIV.

[78]

It
    was also crucial that the trial judge relate the evidence to both the
    appellants intention to infect his partners, and the appellants belief that,
    absent medical intervention, his partners deaths from AIDS, at some point in
    the future, was a virtual certainty. While the trial judge reviewed the
    relevant evidence in a fair and balanced manner, she did not relate it to the
    appellants state of mind as described above. This failure was particularly
    important in respect of the contention that the appellant believed that, absent
    medical intervention, his partners deaths from AIDS was a virtual certainty.

[79]

In
    my view, the phrase meant to kill, without more, would not inform the jury
    that they could only find the requisite intent based on the appellants belief
    with respect to the consequence of death if they were satisfied that the
    appellant believed that death was a virtual certainty. There was a real risk
    that the jury would proceed on the basis that the phrase meant to kill
    included a belief by the appellant that death was a possible, or even a
    probable outcome of his actions. Neither is sufficient to establish the
mens
    rea
for murder.

[80]

That
    risk was enhanced by the trial judges summary of the Crowns position:

Mr. Boone knew the terrible and fatal consequences of being
    infected with HIV, and by anally penetrating [the complainants] and ejaculating
    inside them, he was doing exactly what he knew would be most likely to bring
    about that very result. To satisfy his own perverse sexual desires,
he attempted to infect them with HIV, knowing that if he
    succeeded, he could also succeed in causing their deaths.
[Emphasis
    added.]

[81]

If
    the appellant believed that his actions
could
also succeed in causing
    their deaths, but it was not his purpose to cause their deaths, the appellant
    was not guilty of attempted murder. The Crown had to prove either that the
    appellants purpose was to kill his partners, or that he believed that eventual
    death from AIDS was a virtual certainty.

[82]

There
    was evidence that the appellant knew that his partners could be infected with
    HIV. Indeed, there was strong evidence that he wanted to infect his partners
    with HIV. There was also evidence that the appellant knew that HIV could lead
    to AIDS and to death at some point in the future if left untreated. However,
    the evidence capable of supporting the inference that the appellant believed
    that death at some point was a virtual certainty was not strong. There was also
    a body of evidence suggesting that the appellant understood that even if his
    partners were infected with HIV, death from AIDS was far from a certainty.

[83]

It
    is important to bear in mind that in the context of the
mens rea
inquiry, it is the appellants purpose or his subjective belief about the
    likelihood of death as a consequence of infection that matters. The expert
    evidence speaks to the state of scientific knowledge and statistical
    possibilities of infection and death. That evidence is not directly relevant to
    the appellants belief or his purpose, although it may, if somehow connected to
    the appellants state of mind, assist the jury in deciding what the appellant
    believed.

(vi)

Summary

[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 appellants foreseeability of the certainty of the consequences of
    his acts.

[85]

In
    light of the Crowns 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
    judges instructions with respect to the
mens rea
for attempted murder
    revealed non-direction, constituting misdirection. I would quash the attempted
    murder convictions.

(vii)

The common sense inference instruction

[86]

Although
    I would quash the attempted murder convictions for the reasons set out above, I
    will address one other argument advanced by the appellant. I agree with counsel
    for the appellant that 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.

[87]

In
    instructing the jury on the state of mind required to establish the offence of
    attempted murder, the trial judge told the jury:

You may conclude, as a matter of common sense, that if a person
    does something that has natural and probable consequences, sometimes also
    referred to as predictable consequences, that person usually intends or means
    to cause those consequences. But that is simply one way for you to determine a
    persons actual state of mind, what he actually meant to do. It is a conclusion
    that you may
only
reach, however, after considering all the evidence. [Emphasis
    in original.]

[88]

The
    common sense inference instruction is part of most jury instructions. It is
    an example of the more general instruction to juries that they should use their
    common sense in deciding the issues, including the inferences that should or
    should not be drawn about an accuseds state of mind.

[89]

The
    common sense inference instruction, however, assumes that the act or acts in
    question have natural and probable consequences. If, as a matter of common
    human experience, an act commonly produces a certain result, it makes sense,
    absent some other explanation, to infer that the person who did the act
    intended the result which commonly flows from doing the act. Thus, if A stabs
    B, it is usually safe to infer he intended to cause B bodily harm. The more
    likely, as a matter of common human experience, the consequence is to flow from
    the action, the stronger will be the inference that the person intended that
    consequence. Properly used, the common sense inference is a helpful tool to
    be used in assessing the evidence going to the accuseds state of mind: Baker, at
    p. 115.

[90]

The
    common sense inference instruction is helpful, however, only if, as a matter
    of common human experience, there is a close causal connection between the act
    and the consequence which is material to the criminal charge. Can it be said
    that a close causal connection exists either between the sexual activity
    engaged in by the appellant and the infection of his partners, or between the
    infection of his partners and their ultimate death from AIDS? The evidence says
    no to both questions. Indeed, the expert evidence indicates that neither
    infection as a result of the sexual activity, nor eventual death from infection
    can be accurately described as natural and probable consequences.

[91]

It
    could be argued that, as a matter of logic, the common sense inference
    instruction would have assisted the appellant in that the death of his partners
    was not, on the evidence, the natural and probable, or predictable consequences
    of his actions. However, my concern is that the common sense inference
    instruction, which invites the use of common sense to draw inferences from the
    evidence, could be taken by the jury as an indication that it could conclude,
    using its own common sense, that infection and death were indeed the natural
    and probable consequences of the appellants actions. Both inferences went
    beyond what could be inferred as a matter of common sense. Indeed, both
    inferences were contrary to the evidence given by the experts, the only
    evidence which could speak to the necessary causal connection between the
    appellants actions and the consequences of those actions.

B.

Was it open to the jury as a
    matter of law to convict the appellant of attempting to murder M.B. (count 8)?

[92]

The
    appellant submits that, apart from the errors in the jury instruction on
    attempted murder, the appellant could not, as a matter of law, be convicted of
    attempting to murder M.B. This argument rests on the assertion that M.B.s
    consent to sexual activity knowing the appellant was HIV positive effectively
    precludes the conviction of the appellant on any criminal charge arising out of
    the sexual activity.

[93]

There
    is no doubt that M.B. knew the appellant was HIV positive and gave an informed
    consent to the sexual activity with the appellant. Counsel for the appellant
    submits that M.B.s informed decision to have sex with the appellant, knowing
    he was HIV positive, not only rendered the sexual activity consensual, but also
    meant that there could be no criminal liability arising out of the sexual
    activity. The interveners, Canadian HIV/AIDS Legal Network and HIV & AIDS
    Legal Clinic Ontario, support the appellants position. The interveners argue
    that the appellants criminal convictions in the face of M.B.s informed
    consent to the sexual activity are offensive, discriminatory, and violate the
    human dignity and autonomy of people living with HIV.

[94]

At
    trial, counsel for the appellant accepted that M.B.s consent to unprotected
    sex had no impact on the attempted murder charge. Counsel at trial was correct.

[95]

As
Mabior
makes clear, if a person consents to sexual activity knowing
    the partner is HIV positive, that consent is an answer to any criminal charge
    in respect of which the Crown must prove the absence of consent. Those charges
    would include assault, sexual assault, aggravated assault, and aggravated sexual
    assault.

[96]

Mabior
,
    however, does not create a general amnesty from criminal liability in respect
    of allegations arising out of consensual sexual activity with a person who is
    HIV positive.
Mabior
says nothing about liability for offences that do
    not require proof of the absence of consent. There are many such offences, including
    attempted murder.

[97]

On
    the attempted murder charge, the Crown was required to prove that the appellant
    intended to kill M.B., and did something in furtherance of that intention that
    went beyond preparation. The conduct said to constitute the
actus reus
of the attempt need not be criminal or even unlawful. The culpability arises
    principally from the accuseds mental state.

[98]

M.B.
    could clearly not have consented to being killed by the appellant:
Criminal
    Code
, ss. 14, 241.2. I see no basis for holding that M.B.s consent to sex
    with the appellant somehow negates or vitiates any essential element of the
    offence of attempted murder.

[99]

With
    respect, the interveners submission that the appellants conduct becomes
    morally blameless because of M.B.s consent to sex ignores the fact that to
    prove the attempted murder charge, the Crown had to prove that the appellant
    intended to kill M.B. It is a misnomer, to say the least, to describe someone
    who intends to kill another as morally blameless.

[100]

I also do not accept
    that a conviction of the appellant for attempted murder, assuming he intended
    to kill, is somehow discriminatory or offensive to the dignity of persons
    living with HIV. Anyone who intends to kill someone else, and does something
    beyond preparation to bring that result about, is a would-be murderer and
    properly accountable under the criminal law. Holding the appellant accountable,
    assuming he had the intention to kill, in no way imposes a special rule on him
    or limits his ability to engage in consensual sexual activity any more than it
    limits anyone elses ability to engage in sexual activity.

C.

Did the trial judge err in her
    instructions on the offence of administering a noxious thing?

[101]

The appellant was
    convicted of administering a noxious thing to D.S. (count 2) and administering
    a noxious thing to M.C. (count 5). Both convictions were stayed. The two counts
    were worded identically. For example, count 2 read:

And further that the said Steven Paul Boone  did, with intent
    to endanger the life of or cause bodily harm to another person, namely [D.S.],
    administer a noxious thing, namely Human Immunodeficiency Virus, contrary to Section
    245, clause (a) of the Criminal Code.

[102]

The offence of
    administering a noxious thing is created by s. 245(1) of the
Criminal Code
.
    The relevant portions of the section read:

Every one who administers  to any person  any  noxious thing
    is guilty of an indictable offence and liable

(a) to imprisonment for a term not
    exceeding fourteen years, if he intends thereby to endanger the life of or to
    cause bodily harm to that person; or

(b) to imprisonment for a term not
    exceeding two years, if he intends thereby to aggrieve or annoy that person.

[103]

In this case, the
    indictment specifically alleged the intention described in s. 245(1)(a).
    The trial judge instructed the jury that it was for them to determine whether
    the Crown had proved beyond a reasonable doubt that the appellant meant to
    cause the complainants bodily harm and/or to endanger their lives. No one took
    issue with this instruction at trial.

[104]

The appellant makes
    two submissions in respect of the findings of guilt on the administration of a noxious
    thing charges. He submits that
Mabior
dictates that in cases involving
    non-disclosure of ones HIV status, the operative crime is aggravated sexual
    assault and that there can be no liability for any other offence.

[105]

As explained above
    (paras. 95-96),
Mabior
addresses non-disclosure of HIV status in the
    context of allegations in which the Crown is required to prove the absence of
    consent as an element of the offence. Consent is not an element of the charge
    of administering a noxious thing.
Mabior
says nothing about the
    appellants potential liability on the charges of administering a noxious thing.

[106]

The appellant also
    argues that the trial judge misstated the
mens rea
of the offence. The
    trial judge repeatedly told the jury that the Crown must prove beyond a reasonable
    doubt that the appellant meant to cause them [the complainants] bodily harm
    and/or to endanger their lives.

[107]

The appellant asserts
    that the trial judge was obliged, in keeping with
Buzzanga
, to tell
    the jury that the Crown had to prove that the appellant knew, to a virtual
    certainty, that his actions would endanger the lives of the complainants.

[108]

I see no need for an
    instruction on oblique or indirect intent in respect of these charges. The
    Crowns case rested on the evidence that the appellant intended to infect his
    partners with HIV. In pursuit of that intention, he administered the noxious thing
     HIV. In doing so, he immediately exposed the complainants to the risk of
    infection, a risk that could lead to a deadly disease. That risk clearly
    endangered their lives. The complainants exposure to a risk of infection as a
    consequence of the appellants actions was inevitable and immediate. That
    exposure endangered the complainants lives. Unlike the attempted murder
    charges, an instruction that the appellant meant to endanger the
    complainants lives adequately captured the intent requirement. These charges,
    again unlike the attempted murder charges, also lent themselves to the common
    sense inference instruction given by the trial judge.

[109]

One additional point
    should be made. The appellant has not appealed his convictions on the charges
    of aggravated sexual assault relating to D.S. and M.C. He accepts that he had
    unprotected anal intercourse with those complainants, and that he lied to them
    about his HIV status. By not appealing the convictions, he also accepts that
    his conduct endangered the lives of D.S. and M.C. In light of those unappealed
    convictions and the findings underlying them, I would give little credence to
    the submission that the trial judge misdirected the jury on the requirement of
    an intent to endanger life as an element of the charges of administering a
    noxious thing to D.S. and M.C.

[110]

The trial judge
    adequately instructed the jury on the essential elements of the offence of administering
    a noxious thing. She also properly stayed the convictions pursuant to the
    principle in
R. v. Kienapple
, [1975] 1 S.C.R. 729.

D.

Did the trial judge err in
    leaving the allegation that the appellant attempted to administer a noxious thing
    to M.B. with the jury?

[111]

Count 7 charged the
    appellant with attempting to administer a noxious thing to M.B. The jury
    returned a guilty verdict. The trial judge stayed the finding of guilt in light
    of the jurys guilty verdict on the attempted murder charge.

[112]

It was the Crowns
    theory on the attempted administration of a noxious thing charge that the
    appellant believed that M.B. was not infected with HIV at the time they had
    unprotected anal sex. In fact, M.B. was HIV positive. Consequently, the Crown
    charged attempt rather than the full offence.

[113]

In setting out the
    elements of the offence, the trial judge told the jury that the Crown had to
    prove beyond a reasonable doubt that the appellant believed that M.B. was HIV
    negative. If the Crown failed to prove that fact beyond a reasonable doubt, the
    jury was required to acquit.

[114]

On this count, the
    Crown alleged that the appellant was trying to infect M.B. with HIV. He could
    not achieve that goal because, unknown to him, M.B. was already HIV positive. Impossibility
    is not a defence to a charge of attempting to commit a crime:
Dynar
, at
    para. 67;
R. v. Williams
, 2003 SCC 41, [2003] 2 S.C.R. 134, at paras.
    62-64. The fact that the appellant could not infect M.B. with HIV was no legal
    impediment to his conviction on the charge of attempting to administer a
    noxious thing. Nor could M.B.s knowledge that the appellant was HIV positive
    impact on the appellants liability for attempting to administer a noxious thing.

[115]

The instruction was
    appropriate and the trial judge properly stayed the finding of guilt on the
    charge in light of the jurys conviction on the charge of attempting to murder
    M.B.

E.

Can the conviction for aggravated
    sexual assault in count 9 stand?

[116]

It was accepted at
    trial that the appellant had anal intercourse with B.C. on one occasion. He
    lied to B.C., telling him that he was HIV negative. B.C., who was HIV negative,
    would not have had sex with the appellant if he knew that the appellant was HIV
    positive. Fortunately, B.C. was not infected by the appellant.

[117]

B.C. insisted that the
    appellant wear a condom when they had sex. He saw the appellant put the condom
    on before he penetrated B.C. and saw him take it off after. B.C. could not say
    whether the appellant ejaculated before he removed his penis from B.C.

[118]

The appellants
    liability on this count turned on whether the Crown had proved beyond a
    reasonable doubt that there was a realistic possibility that HIV would be
    transmitted to B.C. during the sexual activity. If that realistic possibility
    existed, and in light of the appellants misrepresentation as to his HIV status,
    B.C.s apparent consent to sexual activity was vitiated. A realistic
    possibility of transmitting HIV also established the endangerment to life
    element of the offence of aggravated sexual assault:
Criminal Code
, s.
    273;
Mabior
, at paras. 91-94, 104.

[119]

The experts agreed
    that the receptive partner in anal intercourse faces the highest risk of
    infection from an HIV-positive partner. They also agreed that the higher the
    viral load of the infected person, the higher the risk of infecting the
    partner. The appellant had a high viral load. Were these the only two factors relevant
    to risk, the allegation involving B.C. would be indistinguishable from the
    allegations involving the other three complainants. A realistic possibility of
    infection would clearly exist.

[120]

There were, however,
    two additional factors that potentially made the assessment of B.C.s risk
    different than the risk assessment as it applied to the other complainants. There
    was evidence that the appellant used a condom when he had sex with B.C., and
    there was evidence that he did not ejaculate into B.C.

[121]

The experts agreed
    that the proper use of condoms, and the absence of ejaculation, significantly
    reduced the risk of transmission. Dr. Remis, the Crown expert, estimated that
    if the appellant properly used a condom and did not ejaculate before he
    withdrew from B.C., the chances of infection were 1 per 1,000 acts. If the
    appellant ejaculated, Dr. Remis put the risk at 1 per 500 acts (0.2 percent).

[122]

Dr. Tyndall testified
    that without ejaculation, the risk of infection decreased. He did not think
    that the studies permitted an accurate quantification of that reduction. Dr.
    Tyndall agreed with Dr. Remis that condom use reduced the risk of transmission
    overall by about 80 percent. Dr. Tyndall also testified that if the condom was
    properly applied and did not malfunction during use, the risk reduction
    approached very near 100 percent. Of course, no one could know ahead of any particular
    sexual activity whether the condom would malfunction in some way.

[123]

The appellant submits
    that the trial judge should have instructed the jury that, in the absence of
    any evidence of ejaculation or the misuse or sabotaging of the condom by the
    appellant, the Crown could not establish a realistic possibility of
    transmission of HIV, thereby necessitating an acquittal on the charge.

[124]

I agree with counsel
    for the appellant that the evidence did not permit an inference that the
    appellant ejaculated into B.C. I disagree that it was not open to the jury to
    infer that the appellant somehow sabotaged the condom before having sex with
    B.C. The appellants text messages are replete with references to how he would deceive
    his partners by pretending to use condoms, or by poking holes into the condoms
    he used. It was open to the jury to infer that the appellant used one of these
    tricks in the face of B.C.s insistence that he wear a condom. The appellant
    clearly preferred unprotected sex. It was also, of course, open to the jury to
    treat the appellants texts as untrue and reflective of the roleplaying among
    the individuals who frequented these websites and not actual events.

[125]

If the jury was
    satisfied that the appellant did something to compromise the effectiveness of
    the condom, Dr. Remiss evidence indicated that the risk of HIV infection would
    increase and could, in some situations, approach the risk associated with unprotected
    sex. The risk described by Dr. Remis fell well within the level of risk
    required to establish a realistic risk under
Mabior
.

[126]

The Crown submits that
    for the purposes of determining the appellants liability on the charge of
    aggravated sexual assault in respect of B.C., it did not matter whether the
    appellant ejaculated or somehow compromised the condom. Crown counsel relies on
Mabior
. Counsel submits that in the interests of providing greater
    certainty,
Mabior
defined realistic risk, both at the level of
    principle and by reference to concrete situations. The Crown argues that
Mabior
declared that a realistic possibility of transmission of HIV existed unless the
    infected person, both wears a condom and has a low viral load. As the appellant
    had a high viral load, there was a realistic risk of infection, regardless of
    whether he wore a condom: see
Mabior
, at paras. 101, 104.

[127]

Crown counsel acknowledges
    that the court was careful in
Mabior
to tie the risk assessment to the
    evidence in the case. She submits, however, that
Mabior
intended to identify
    the existence of a realistic risk as a matter of law in certain fact
    situations, subject to the evidence in a particular case demonstrating the need
    for recalculation of the risk.

[128]

There is force to the
    Crowns submission. However, it ignores one factor. In
Mabior
, the
    accused ejaculated into his partners. There was nothing in the evidence in this
    case which could support the inference that the appellant ejaculated into B.C.
    Does this factor, which on the expert evidence in this case reduces the risk of
    infection, take this case outside of the holding in
Mabior
to the
    effect that condom use only eliminates realistic risk when combined with a low
    viral load?

[129]

In assessing what constitutes
    a reasonable possibility of transmission, one takes into account both the
    likelihood of transmission occurring and the potential harm caused if transmission
    occurs. The greater the potential harm, the lesser the likelihood needed to
    satisfy the realistic possibility of transmission requirement:
Mabior
,
    at paras. 86, 90-92. Infection with HIV remains a serious, life-changing, and life-endangering
    event. It is also a risk which the infected partner unilaterally imposes on the
    uninfected partner as a consequence of a misrepresentation as to HIV status.
    Even low statistical chances of transmission qualify as a realistic possibility
    of transmission, given that the uninfected partner never accepted any risk and
    the very serious harm that results if infection in fact occurs.

[130]

The expert evidence in
Mabior
placed the risk of infection from unprotected vaginal
    intercourse, without a condom, and with a person who did not have a reduced
    viral load, as high as 1 in 384 and as low as 1 in 2,000:
Mabior
, at
    para. 97. The court held that when the risk was significantly ameliorated by either
    condom use, or antiretroviral therapy, but not both, the resulting risk remained
    a realistic, as opposed to speculative or negligible, risk:
Mabior
, at
    paras. 98-101. As I read
Mabior
, risks in the order of 1 in 1,000
    remain realistic risks for the purposes of determining when non-disclosure of
    ones HIV status vitiates consent to sexual activity.

[131]

On the expert evidence
    adduced in this case, the risk of infection, even absent ejaculation, remained
    at about 1 in 1,000. That risk is at least as great as the risks recognized in
Mabior
as sufficient to cross the realistic risk threshold.

[132]

Putting the risk
    factors at their best for the appellant, and assuming condom use and an absence
    of ejaculation, B.C.s risk of infection was in the same order at least as the
    risk of infection faced by the victims in
Mabior
. The appellant was
    properly convicted on this count.

F.

Disposition of the conviction
    appeal

[133]

For the reasons set
    out above, I would quash the convictions on the three attempted murder charges
    (counts 3, 6 and 8). While it seems to me unlikely that a jury would find the
    intent to kill, as I have described it, I cannot say that convictions on the
    attempted murder charges would be unreasonable on this evidence. The Crown is
    entitled to a new trial on the attempted murder charges if it so chooses.

[134]

The convictions on the
    three aggravated sexual assault charges stand (counts 1, 4 and 9).

[135]

The stays entered on
    the two counts of administering a noxious thing (counts 2 and 5) remain in
    place, given the convictions on the aggravated assault charges (counts 1 and 4).
    However, given that the attempted murder conviction in respect of M.B. (count
    8) has been quashed, the stay on the charge of attempting to administer a
    noxious thing to M.B. (count 7) must be set aside and a new trial ordered on
    that count.

VI

THE SENTENCE APPEAL

[136]

The trial judge
    sentenced the appellant on March 9, 2016. She gave extensive and careful
    reasons. On March 30, 2016, the trial judge heard submissions from counsel and
    adjusted the sentences she had imposed to accurately reflect the total sentence
    she had intended to impose. Having regard to the totality principle, the trial
    judge determined that an effective sentence of 14 years (168 months) should be
    imposed. She gave the appellant credit on a 1.5:1 basis for presentence custody,
    resulting in a credit of 1,710 days (57 months). She imposed a total net
    sentence of 9 years, 3 months (111 months).

[137]

The sentences imposed
    on the individual counts were as follows:

·

Attempted murder of D.S. (count 3)  9 years;

·

aggravated assault of D.S. (count 1)  8 years concurrent;

·

attempted murder of M.C. (count 6)  1 month consecutive;

·

aggravated sexual assault of M.C. (count 4)  4 years concurrent;

·

attempted murder of M.B. (count 8)  1 month consecutive; and

·

aggravated sexual assault of B.C. (count 9)  1 month
    consecutive.

[138]

The trial judge also
    imposed a long-term supervision order under s. 753.1(3) for a period of five
    years.

[139]

As I would order a new
    trial on the attempted murder charges, I am concerned only with the sentences
    on the aggravated sexual assault convictions for the purposes of the sentence
    appeal. Those three sentences totalled 8 years, 1 month. However, those
    sentences no doubt took into account the sentences imposed on the attempted
    murder charge. More significantly, they also took into account, to some extent,
    the lengthy presentence custody. It is impossible to say what sentence the
    trial judge would have imposed had there not been convictions on the attempted
    murder charges. Given her justified concern with totality, I think it is fair
    to say that the sentences for the aggravated sexual assault convictions may
    well have been somewhat higher absent the sentencing on the attempted murder
    charges.

[140]

The trial judge, in
    her careful reasons for sentence, made it clear that she regarded the
    aggravated sexual assault convictions as serious offences, particularly the
    conviction involving D.S. The trial judge described the appellants conduct as
    calculated and ruthless and deliberate and malicious.

[141]

The trial judge also
    found as a fact that the appellant had infected D.S. with HIV. In doing so, she
    relied on the opinion of Dr. Remis. As counsel for the appellant points out, Dr.
    Remis did not go quite that far. On his analysis of D.S.s encounters with
    other sexual partners, Dr. Remis concluded its far more likely that he [D.S.]
    was infected by Boone than by any of these partners.

[142]

While the trial judge
    misapprehended Dr. Remiss evidence to some extent, the evidence he actually
    gave would, in my view, support a finding, beyond a reasonable doubt, that the
    appellant infected D.S. The existence of a scientific possibility that someone
    else infected D.S. does not preclude a finding beyond a reasonable doubt based
    on Dr. Remiss evidence that it was the appellant who infected D.S. Proof
    beyond a reasonable doubt does not require scientific certainty.

[143]

While I see no reason
    to interfere with any of the findings made by the trial judge on sentence, or
    with the long-term offender order made by the trial judge, I do think the
    interest of justice would be best served by giving counsel the opportunity to
    make submissions as to the appropriate sentences on the aggravated sexual
    assault charges taking into account that the attempted murder convictions have
    been quashed. The Crown may be in a position to indicate whether it intends to
    proceed with the attempted murder charges. If it does not proceed with the
    attempted murder charges, fixing a fit sentence on the aggravated sexual
    assault charges may become a more straightforward matter. Counsel should make
    arrangements for a conference call with me to determine exactly how the
    sentence appeal should proceed.

VII

Conclusion

[144]

I would allow the appeal
    from the convictions on the three attempted murder charges (counts 3, 6 and 8)
    and direct a new trial. I would set aside the stay on the charge of attempting
    to administer a noxious thing (count 7) and direct a new trial. I would adjourn
    the sentence appeal for further submissions, in light of the disposition of the
    conviction appeal.

Released: DD  AUG 12 2019

Doherty J.A.

I agree B.W. Miller J.A.

I agree Fairburn J.A.

[1]

The Crown conceded it could not prove the full offence on this
    count. The trial judge charged the jury on attempt. The jury acquitted.

[2]

According to the glossary filed at trial, the word poz means
    HIV positive.

[3]

HIV negative.

[4]

Ejaculate/semen.

[5]

The references come from an exhibit summarizing the text
    messages. The originals were not reproduced on the appeal.

[6]

The two experts did disagree about whether it was possible to
    conclude the appellant likely infected D.S. They also disagreed as to the risk
    of infection via unprotected oral sex. That evidence was, however, germane only
    to the counts on which the appellant was acquitted.

[7]
Counsel and the trial judge discussed the proposed charge at length. There were
    several drafts prepared. The appeal proceeded on the basis that the typed
    version of the charge headed Amended Final Instructions, given to the jury,
    was the operative version of the instructions.