R. v. Bear (C.W.), 2013 MBCA 96

Citation: R. v. Bear (C.W.), 2013 MBCA 96 Date: 20131024 Docket: AR 11-30-07643 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice William J. Burnett BETWEEN : ) A. Y. Kotler HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) E. G. Murphy ) for the Respondent - and - ) ) ) Appeal heard: CLIFFORD WAYNE BEAR ) April 4, 2013 ) (Accused) Respondent ) Judgment delivered: ) October 24, 2013 STEEL J.A. [ 1 ] The accused in this case is HIV-positive.

The Crown appeals the accused’s acquittal on the charge of aggravated assault (or alternatively, attempted aggravated assault) for spitting in a police officer’s face. The trial judge convicted the accused of the included offence of common or simple assault. [ 2 ] This appeal once again raises the difficult question of when an HIV-positive accused will be criminally liable for exposing another individual to a risk of transmission of the virus, albeit by way of spitting as opposed to sexual relations. The trial judge applied this court’s decision in R. v.

Mabior (C.L.) , 2010 MBCA 93 , 258 Man.R. (2d) 166, and held that the Crown had not proven that there was a “significant risk” of transmission of the virus so as to endanger the life of the complainant and, therefore, aggravated assault was not established. The appeal was adjourned pending the Supreme Court of Canada’s decision in the Mabior case ( R. v. Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584). Facts [ 3 ] The accused, who knew he was HIV-positive, was arrested by the police after an altercation with store security. He was observed by store security taking items and leaving the store without paying for them.

When a security officer attempted to stop him, he pushed her to the floor and fled, entering onto a bus. The police were called and the accused was removed from the bus and arrested. [ 4 ] During transport to the Public Safety Building, he made comments about HIV and spitting and, as a precautionary measure, a spit sock was placed over his head. The accused had an open cut on his lip and spots of blood on his shoes. It was not established whose blood was on his shoes, which was an issue because a member of the store staff had received a cut which bled during the altercation with the accused in the store.

[5] The accused was placed in an interview room while the police officers conducted some further checks. While in theinterview room, the accused managed to push up his spit sock, even though he was still handcuffed. He then hid near the door. Whenthe police officer entered the room, the accused stepped out and spit in his face. The accused was about two feet away when he spit atthe officer. The spit landed in the officer’s eye and nose, and on his forehead. The police officer was taken to the hospital and treatedwith post-exposure prophylactic drugs.

He shows no sign of having contracted HIV. [6] The accused was charged with aggravated assault pursuant to s. 268(1) of the Criminal Code (the Code). At trial, theaccused was acquitted of aggravated assault, but convicted of simple assault. In her reasons, the trial judge also considered, but rejected,the Crown’s alternative argument that the accused should be found guilty of attempted aggravated assault pursuant to s. 660 of the Code. Trial Judge’s Reasons [7] The trial judge held that the Crown had proven the mens rea of the offence.

She found that the spitting was clearly anintentional act as evidenced by the comments the accused made in the cruiser car about HIV/AIDS and spitting; the lifting up of the spitsock; the refusal to answer the officer’s calls and knocks at the cell door; and the accused’s successful efforts to hide himself from viewin an obvious attempt to surprise the officer when he opened the door.

She also found as a fact that the accused knew he was infectedwith HIV, that he had been counselled about how it was transmitted and, therefore, that he could be taken to know that his cut lip, andblood flowing from that cut, could potentially contaminate his saliva and pose some risk of HIV infection. [8] However, the trial judge also held that the Crown had not proven the actus reus in that it had not established that theaccused’s actions constituted a “significant risk of serious bodily harm.” She found that the evidence did not establish that the risk oftransmission was a significant enough risk of transmission to prove beyond a reasonable doubt that the complainant’s life wasendangered.

In her view, that was the test which she was required to apply, given the Supreme Court of Canada’s decision in R. v.Cuerrier, (SCC), [1998] 2 S.C.R. 371, and this court’s decision in Mabior (C.L.). [9] The trial judge relied on evidence from Dr. Michael James Dillon, an expert with “an expertise on the diagnosis,treatment and prevention and education of sexually transmitted and blood-borne diseases including HIV and AIDS.” Dr. Dillon statedthat a risk of HIV infection does exist if someone gets a splash of blood in the eye.

When asked about someone who is HIV-positivewith a moderate viral load and an open cut, who spits into someone’s eye, Dr. Dillon said it was “possible” some HIV blood could betransmitted from that person through the mucous membrane of the receiving person – in other words, a person could be infected withblood-tainted saliva.

Specifically, with respect to the accused, it was his view that the accused could transfer HIV through blood and thatone could not eliminate the possibility of it being transferred through blood mixed with saliva. [10] Based on the above, the trial judge held that the Crown had not proven that a significant risk of transmission existed.

She held that some risk or the fact that the possibility of transmission could not be eliminated, was not proof of a significant risk. [11] She also held that the evidence fell short of proving the offence of attempted aggravated assault and that s. 660 of theCode was not applicable to the facts of this case. [12] The Crown appeals on two grounds: 1. that the trial judge erred by applying the incorrect legal test in determining whether an aggravated assault had occurred; and 2. that the trial judge erred by misapprehending and/or misusing some of the evidence in making her determination that the accused’sactions did not endanger the life of the complainant.

Position of the Parties [13] The Crown argues that the legal test used by the trial judge to determine endangerment, being that of a “significant riskof serious bodily harm,” was the wrong legal test for two reasons. [14] First, “significant risk of serious bodily harm” was the applicable test used in cases dealing with vitiating consent tosexual activity due to fraud pursuant to a charge of aggravated sexual assault under s. 273(1) of the Code. The issue of consent to sexualactivity and vitiation of that consent does not arise in this case.

Consequently, that test has no application to prosecution under s. 268(1)of the Code. [15] Instead, the Crown submits that the charge of aggravated assault is made out here because the saliva of the accusedstriking the complainant carried enough of a possibility of transmitting HIV that the life of the complainant was endangered. In otherwords, any risk of transmission is sufficient to constitute endangerment. [16] In addition, the Crown says that there is a difference between the determination of a “significant risk of serious bodilyharm” and endangerment.

The correct approach to endangerment in the context of HIV transmission, according to the Crown, was setout in the Ontario Court of Appeal case of R. v. Thornton (1991), (ON CA), 1 O.R. (3d) 480, where the court statedthat (at p. 488): When the gravity of the potential harm is great, in this case “catastrophic”, the public is endangered even where the risk of harm actuallyoccurring is slight, indeed even if it is minimal. ….

[17] Therefore, the Crown argues, it is not necessary to demonstrate a “significant” risk of transmission to establishendangerment of life, but rather, a “minimal” risk would be sufficient. It is not necessary that the likelihood of transmission be high, oreven that it be capable of quantification. It is enough that the concern is real.

The Crown submits that the evidence exceeded thisstandard and the offence was made out. [18] Alternatively, it is submitted, even if the test is higher than that of minimal risk, Mabior has now been decided by theSupreme Court of Canada, and a less demanding standard has been adopted for “significant risk of serious bodily harm” in the context ofpotential HIV transmission. The Crown states that, according to McLachlin C.J.C., the test is met wherever there is a “realisticpossibility” that the virus may be transmitted (at para. 84).

In this case, there was a realistic possibility of transmission as a result of theaccused’s actions. [19] With respect to the misapprehension of evidence, the Crown argues that the trial judge relied on the evidence of Mr.Dennis Loeppky as to the risk of HIV transmission when that witness was never qualified as an expert on HIV transmission or, indeed,on anything. He was called simply to establish what he had told the accused, i.e., to establish the accused’s mens rea.

He was neverqualified to offer opinion evidence about the likelihood of transmission or the risks inherent in mixing blood and saliva. [20] Moreover, Mr. Loeppky was not asked about the risks of transmission regarding blood mixed with saliva.

He was onlyasked about the risk of transmission in relation to blood and saliva individually. [21] The Crown asks that a conviction on the charge of aggravated assault or alternatively, a conviction for attemptedaggravated assault, be substituted for the conviction on the charge of simple assault. [22] The accused asserts that, whether the test is for the Crown to prove a significant risk of serious bodily harm or arealistic possibility of transmission or a lesser standard, the evidence adduced does not warrant a conviction.

Not only does the evidencenot establish a real risk of transmission of the virus when blood is mixed with saliva, but the evidence does not show that any blood was,in fact, mixed with the spit which landed on the face of the police officer. Decision Standard of Review [23] As this appeal involves a Crown appeal from acquittal, this court’s jurisdiction to hear the appeal is limited to questionsof law and does not extend to questions of mixed fact and law or questions of fact. See s. 676(1)(

a) of the Code and R. v. Koczab (A.),2013 MBCA 43, 294 Man.R. (2d) 24. [24] The Crown has argued that the trial judge applied the incorrect legal test in determining whether an aggravated assaultoccurred. As this court has repeatedly noted, in a criminal case, the application of the correct legal principle to the facts of a caseinvolves a question of law. In R. v. T.W.B., 2012 MBCA 7, 275 Man.R. (2d) 157, the Crown appealed the acquittal of a young person onweapons-related charges. M.A. Monnin J.A. repeated the following comments from R. v. Farrah (D.), 2011 MBCA 49 at para. 7, 268Man.R. (2d) 112, which identified the appropriate standard of review as correctness (T.W.B. at para. 24): ….

c) The appellate court will also examine the application of the legal principles to the facts of the case to see if the facts, as found by thejudge, satisfy the correct legal test. In the criminal law context, this is a question of law and the standard of review is correctness (see R.v.

Shepherd (C.), 2009 SCC 35 , [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, at para.20). …. [25] The issues of whether the trial judge correctly interpreted the requirement to prove endangerment of life in s. 268(1) ofthe Code and correctly applied it in the facts of this case, are both questions of law and the standard of review is that of correctness. Aggravated Assault [26] The offence of aggravated assault, in s. 268(1) of the Code, reads as follows: Aggravated assault 268.

(1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant.

[27] In this case, obviously the Crown is relying on the last component of that

section – to endanger the life of thecomplainant. The consequence of endangering life is significantly different from the first three consequences of wounding, maiming ordisfiguring contained in s. 268(1) of the Code. The former three involve the actual causing of serious bodily harm, whereas endangeringlife may occur without any bodily harm actually occurring to the victim. [28] In non-HIV cases, endangerment of life in the context of a charge of aggravated assault has been expressed as puttingthe complainant’s life into danger or incurring the risk of death. For example, in R. v.

Sayers, 2008 ONCJ 406 (QL), the accused heldthe complainant underwater. Bishop J. wrote (at paras. 7-8): For the Crown to establish “endanger life” there must be proof of risk of death. Endanger life in the context of aggravated assault, means to “put victim’s life in danger”, “put life in peril or incur the risk of death”. Establishing that an assault could cause “potentially lethal consequences” is sufficient. …. [29] Another illustrative trial decision is R. v. Phillips, (ON SC), [2009] O.J. No. 400 (QL) (Sup. Ct.). Inthat case, the accused drove his car at the victim.

Molloy J. wrote (at para. 69): It is clear in the case before me that [the victim] was exposed to danger, peril and the risk of death by the actions of Mr. Phillips. His lifewas thereby endangered within the meaning of s. 268(1) of the Criminal Code …. [30] Normally, endangerment does not have a special or technical meaning. In non-HIV cases, common experience and theevidence in the case leads the court to conclude that the conduct at issue endangered the life of the complainant.

So, for example, in theabove-noted case, if the car in question was driving at five miles per hour and was a mile away when the complainant noticed it andmoved away, that would not constitute endangerment. That conclusion would be different if the complainant was unconscious, was inthe path of the oncoming car, but still was not injured. [31] In R. v. Melaragni (1992), (ON SC), 75 C.C.C. (3d) 546 (Ont. Gen. Div.), the accused wasconvicted of aggravated assault based on his conduct in firing a revolver at the complainant.

The bullet did not hit the complainant, andthe complainant had no idea that the accused had shot at him, but the bullet did penetrate the back-rest of the passenger seat in which thecomplainant was seated. In that case, even though no bodily harm was caused, it is easy to see how the complainant’s life would havebeen endangered if the bullet had hit his head instead of the seat upon which his head was resting. [32] The Melaragni case was followed in our court in the case of R. v. De Freitas (D.A.) (1999), (MBCA), 134 Man.R. (2d) 78.

In that case, the accused, while resisting arrest, made several stabbing motions at the chest of a peace officerwith a large-bladed knife.

The court concluded that on the facts, the officer’s life was not in fact endangered.[1] [33] So, in a non-HIV case, a complainant’s life would be endangered even though he or she suffered no bodily harm, wherethe evidence established that the complainant’s life had been put in such danger that there was a risk of death. [34] Was the police officer’s life put at risk of death because an accused, who was HIV-positive and had an open cut on hislip, spit at him and the saliva may have entered the mucous membrane of his eyes and/or nose? [35] There have been a number of cases that have dealt with the subject of aggravated assault (or aggravated sexual assault)and accused who are HIV-positive.

The issue has been primarily analyzed within the context of determining whether the non-disclosureof HIV amounts to fraud such that the consent to sexual relations is vitiated. The focus in those decisions has been on whether the risk oftransmission of the virus amounted to a significant risk of serious bodily harm. [36] Recently, in the Mabior case, the Supreme Court had the opportunity to revisit the “significant risk of serious bodilyharm” test in the context of aggravated assault or aggravated sexual assault.

It reiterated the utility of that test, but took the opportunityto clarify how the test applied in the context of HIV. According to the court, in the HIV context, a “significant risk of serious bodilyharm” will exist so long as there is a “realistic possibility of transmission.” There will be a “realistic possibility” of transmission duringvaginal sexual intercourse unless the accused has a low viral load at the time of the activity and a condom was used during theencounter. [37] The Crown argues that the Mabior test should not apply in this case.

It submits that Cuerrier and Mabior concernedcases of aggravated sexual assault and, therefore, the test of “significant risk of serious bodily harm” is related to the consent element ofthat offence. The Crown states that the test is an attempt to explain when the doctrine of fraud applies to vitiate the complainant’s initialconsent to the sexual act, and that questions about vitiation of consent do not arise on the facts of this case. [38] I would note in passing that the Crown is technically incorrect since the charge in the Cuerrier case was aggravatedassault, not aggravated sexual assault.

But, I accept the substance of the argument that the charge was laid in the factual context of

sexual non-disclosure. [2] [ 39 ] The Crown asserts that the correct test for potential HIV transmission by spitting, in the context of endangerment under aggravated assault, is found in Thornton . That case involved an accused who donated blood to the Canadian Red Cross knowing that he was HIV-positive. The accused was charged with nuisance contrary to s. 180 of the Code .

Section 180 reads: Common nuisance 180.

(1) Every one who commits a common nuisance and thereby (

a) endangers the lives, safety or health of the public, or (

b) causes physical injury to any person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. Definition

(2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby (

a) endangers the lives, safety, health, property or comfort of the public; or (

b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada. [ 40 ] In that case, Galligan J.A. wrote (at pp. 487-88):

Section 180 requires that the conduct of a person “endanger” the lives or health of the public. It does not require actual injury or damage. The word “endanger” does not have any special technical meaning. Among the ordinary meanings of that word are the concepts of exposing someone to danger, harm or risk or of putting someone in danger of something untoward occurring …. The conduct of the appellant in donating his blood to the Red Cross obviously put potential recipients and health care workers at risk or in danger of an untoward happening when he donated his blood.

When the gravity of the potential harm is great, in this case “catastrophic”, the public is endangered even where the risk of harm actually occurring is slight, indeed even if it is minimal. …. [ 41 ] The Crown submits that the broad

interpretation of endangerment contained in Thornton reflects the absence of many of the complex considerations inherent in interpreting “consent” in sexual assault cases. There is no need, it is submitted, to narrow s. 268(1) because of the historical or jurisprudential ramifications of expanding the doctrine of fraud since the aggravated assault in this case does not involve sexual relations.

The concerns articulated in Mabior about over-criminalization of non-disclosure are not present in this case, argues the Crown. [ 42 ] Rather, according to the Crown, the court need only determine whether, when the accused committed an assault, he or she endangered the life of the complainant. On the basis of the Thornton case, the Crown contends that, in requiring the Crown to prove that the victim’s life was “significantly” endangered, the trial judge applied too stringent a test.

As noted previously, according to the Crown it is not necessary that the likelihood of transmission be significant, or even that it be quantified. It is enough if the risk is minimal. [ 43 ] However, unlike a situation where a person is pushed into oncoming traffic, but miraculously escapes harm, the endangerment of life in this case is neither direct, immediate nor obvious. Consequently, the applicable test must involve some sort of an assessment of risk. Even the Crown conceded in argument that the risk cannot be speculative, but must be a real risk.

What is a real risk as opposed to a speculative risk in this case?

[ 44 ] I do not find the Thornton case useful in the context of this charge and these facts. In this court’s decision of Mabior (C.L.) , I expressed an opinion in obiter that, while HIV transmission must still be considered a significant risk of serious bodily harm, it may not necessarily still endanger the complainant’s life, given the advances in medical treatment (at para. 73). The Crown referred to that obiter comment in its argument in this case. However, in their decision in the Mabior case, the Supreme Court did not agree with that obiter comment.

Rather, it held that medical science with respect to the transmission of HIV is still of the view that it is a very dangerous disease, if not a death sentence. The court equated significant risk of serious bodily harm with endangerment. McLachlin C.J.C. stated (at para. 92): The test of realistic possibility of transmission proposed in these reasons is specific to HIV. As discussed above, “significant risk” depends both on the degree of the harm and risk of transmission. These two factors vary inversely.

A treatable sexually transmitted disease that does not seriously alter a person’s life or life-expectancy might well not rise to the level of constituting “serious bodily harm”, and would also fail to meet the requirement of endangerment of life for aggravated sexual assault under s. 273(1) . Where the line should be drawn with respect to diseases other than HIV is not before us. It is enough to note that HIV is indisputably serious and life- endangering.

Although it can be controlled by medication, HIV remains an incurable chronic infection that, if untreated, can result in death. …. [emphasis added] [ 45 ] Consequently, in certain circumstances, the risk of transmission of HIV endangers one’s life. Those circumstances occur, according to the Supreme Court of Canada in Mabior , when the risk of transmission is a realistic possibility. A realistic possibility is not, to use the words of McLachlin C.J.C., “extremely low” or “speculative.” She stated (at para. 101): ….

However, on the evidence before us, the ultimate percentage risk of transmission resulting from the combined effect of condom use and low viral load is clearly extremely low ― so low that the risk is reduced to a speculative possibility rather than a realistic possibility. [ 46 ] Even if the policy considerations and complications inherent in non-disclosure of HIV and sexual relations are not present in this case, there must still be a differentiation between a speculative possibility and a real risk for endangerment to be proven.

There is no doubt that the complex pathology of HIV creates difficulties in a prosecution for aggravated assault; however, that should not change the application of the law. As a result, I am of the opinion that the Cuerrier “significant risk” test, as modified by the Supreme Court of Canada in Mabior , applies to determine the level of “endangerment of life” with respect to HIV aggravated assault charges, even where consent is not an issue. [ 47 ] The Crown further argues that this case concerned active malice on the part of the accused, and that he had a high degree of moral blameworthiness.

Consequently, the test for endangerment should not be any higher than in the Thornton case, where the accused was merely reckless. [ 48 ] While there is no doubt that the accused’s actions in this case were truly reprehensible, it must be remembered, as already stated, that aggravated assault focusses on the nature of the consequences, rather than the nature of the assault. As the court (Binnie J.) stated in R. v. Williams , 2003 SCC 41 , [2003] 2 S.C.R. 134 (at para. 58 ): Section 268(1) applies to a wide variety of human activity, and its

interpretation should not be skewed to accommodate the hard facts of this case. Its focus should continue to be, as in the past, on the nature of the consequences rather than on the nature of the assault. [ 49 ] So, the test of what constitutes a significant risk of serious bodily harm specific to HIV is a realistic possibility of transmission of the virus by any method of transmission. It is not a high risk of transmission, but neither is it a negligible risk.

Within the context of sexual intercourse, the Supreme Court of Canada in Mabior found that the use of a condom and a low viral load will reduce the risk of transmission to below that of a realistic possibility. But, what factual circumstances will produce a realistic possibility of transmission where the method of transmission is spitting as opposed to sexual intercourse?

To answer that question, we must look to the evidence adduced at trial to determine whether a realistic or real risk of transmission was present as opposed to a speculative possibility. [ 50 ] The principle evidence regarding transmission was that of Dr. Dillon. At trial, Dr. Dillon testified that HIV was typically only transmitted in certain ways and it wasn’t transmitted casually. According to Dr. Dillon, a blood transfusion is the most efficient way of transmitting HIV: …. So the most efficient way of getting an HIV infection is to get a blood transfusion with infected blood because it takes out the middleman.

There is HIV virus floating around in the, the blood, you get a transfusion with infected blood or even with infected blood products in the case of haemophiliacs, that virus is direct, directly injected into the, the bloodstream, it goes around and immediately will

find cells and the, the host that it can affect and start making more copies of itself. So without a doubt that is the most highly efficient way of transmitting HIV. [ 51 ] Dr. Dillon also wrote a report that was introduced into evidence. The report discussed the risk of transmission by saliva alone or by saliva mixed with blood. He wrote that saliva itself may contain HIV virus particles, but is not considered to be a risk factor for HIV transmission.

There is no conclusive evidence that transmission of HIV has ever happened from any exposure to saliva alone. [ 52 ] With respect to blood, he said that there have been isolated case reports of healthcare workers presumably contracting HIV infection from blood splashes into the eyes and/or other mucous membranes. The risk of blood splashes on mucous membranes is lower with smaller volumes of blood. [ 53 ] Dr. Dillon did testify that healthcare workers, particularly those in the operating room, could get “splashed” by blood: ….

So doctors and operating room nurses have the potential to get splashed by blood coming from someone’s body. As a vessel is cut blood can potentially splash into someone’s eye and in that situation the risk for HIV transmission does exist. . . . . . At that point we would talk about the risk that that person would face from having had that blood exposure to their eye.

We would have a discussion that would involve understanding how big the exposure was, was it maybe just a little drop that might have glanced the eye or was it a good splash that went straight into the eye and there’s blood dripping down your face, that’s the first thing. [ 54 ] Here, there was no evidence of visible blood contained in the saliva. There was, as in Dr. Dillon’s example of the healthcare worker, no blood splash and no blood “dripping down” the police officer’s face. [ 55 ] With respect to a mixture of blood and saliva, Dr.

Dillon’s report indicated that it was theoretically possible that HIV virus particles in blood could be mixed with saliva and transmitted via the “source” spitting into another person’s eye, mouth or nose. One can never say that the risk is non-existent, but there is no information in the medical literature to suggest this has ever happened. On cross-examination, he explained that the words “possible” and “theoretical” seem “much the same word to me.” [ 56 ] Dr.

Dillon did testify that “it is possible that that virus could infect the individual who received the blood-tainted saliva.” But he also testified on cross-examination as follows: Q Certainly. And of all the case studies that you’re aware of, would you agree with me that in terms of somebody being infected by an exposure caused by being spat upon with saliva with blood mixed in, there’s no case study that you can point to and say that’s where the transmission occurred? A That’s correct.

For HIV there is nothing in the literature that I’ve read that has reproduced that particular scenario where someone has clearly contracted HIV from having been spat upon by blood contaminated saliva. [ 57 ] The Crown argues that it will always be at a severe disadvantage in that it cannot recreate how much of an accused’s blood, if any, might be mixed with an accused’s saliva. I do not believe it is necessary in this case to establish a specific quantity.

It is clear from the evidence that if any blood was mixed with the saliva, it was minimal. [ 58 ] The Crown called as witnesses three people who were at the store in question, none of whom noticed any facial cuts on the accused. The officers did not notice any facial cuts on the accused at the time of his arrest. The complainant noticed a small open wound on the accused’s lip. He couldn’t recall if it was on the top or bottom lip. He could see blood in the wound, but it was not running.

The trial judge found that the accused had an open cut on his lip and some drops of blood on his shoes, but there is no evidence that there was any sign of blood in the spit that struck the police officer. The Crown asked the court to infer that there was blood in the accused’s saliva because there was blood on the spit sock which was placed over his face. [ 59 ] Based on all of the above, the trial judge was entitled to draw the inference that, if there was blood in the saliva, the amount of blood was insignificant.

There was evidence which supported her conclusion that the Crown had not proven that there was sufficient blood in the saliva, even if the test of “a realistic possibility of transmission” is applied. That inference cannot be overturned on appeal absent palpable and overriding error, and such error is not present here. See R. v. Thomas (R.T.) , 2010 MBCA 91 at para. 51 , 258 Man.R. (2d) 146. [ 60 ] In

summary, only where there is a realistic possibility of transmission of HIV, will a significant risk of serious bodily harm and endangerment be established. In Mabior , the risk of harm was by way of HIV transmission through bodily fluids in the course

of vaginal sexual intercourse. Use of a condom and a low viral load in the context of vaginal sexual intercourse reduced the risk to onethat is “clearly extremely low” or speculative, rather than a realistic possibility. [61] In this case, the HIV transmission is by way of blood mixed with saliva. The evidence as to whether there was indeedblood mixed with the saliva is far from satisfactory.

However, even if one assumes there was some blood mixed with that spit, in orderto find that the accused endangered the life of the police officer, there must be evidence of a real risk of HIV transmission or, in otherwords, a realistic possibility of transmission. In my mind, those words produce a similar test. [62] There was no evidence adduced by the Crown that approached proof of such a risk. Although Dr. Dillon said thattransmission by way of blood-tainted saliva was possible, he equated possible with theoretical and also stated that such a case had neverbeen reported in the medical literature.

His evidence was that the concerns centered on a situation where a large amount of visible blood(a blood splash) came into contact with the mucous membrane of the eye or nose. [63] Even assuming the trial judge had the advantage of the Supreme Court’s decision on Mabior, there was no evidence bywhich the Crown could prove that there was a realistic possibility of transmission and, therefore, that the police officer’s life wasendangered. Thus, the trial judge was correct in acquitting the accused of the charge of aggravated assault. [64] This leads us to an examination of attempted aggravated assault.

Attempted Aggravated Assault [65] In her reasons, the trial judge rejected a conviction on attempted aggravated assault, finding that the law with respect toattempt did not apply to the circumstances of this case. She stated that the offence of attempt (at para. 69): …. … [A]ddresses the situation of where there is the necessary intent to commit an offence, but the offence is incomplete due to someintervening event. Here, the offence was complete, but the evidence falls short of proving the offence charged. See, R. v.

Detering, (SCC), [1982] 2 S.C.R. 583; 45 N.R. 91. [66] The Crown submits that the trial judge erred in failing to convict under s. 660 of the Code as the actions of the accused“constituted a clear attempt to expose the victim to the virus.” The accused made comments about HIV and spitting. He knew that hisblood carried the HIV virus and could transmit it to someone else. He knew that he had an open cut on his lip that had bled. Heintentionally ambushed the police officer and spat in his face.

The Crown submits that: Her conclusion that, on the evidence, the likelihood of transmission was not high enough to support a finding of actual endangerment didnot change the Respondent’s intentions. If his actions did not manage to create a “significant risk of serious bodily harm,” it was notbecause of a lack of effort. As such, the case met the definition of “attempt” set out in U.S.A. v. Dynar [ (SCC), [1997]2 S.C.R. 462]. [67] I agree with the Crown that the trial judge erred in her analysis of the law of attempt and the application of that law toher findings of fact.

As I have indicated, an error with respect to the legal effect of findings of fact can amount to an error of law. [68]

Section 660 and s. 24 of the Code, read, respectively: Full offence charged, attempt proved 660. Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit theoffence, the accused may be convicted of the attempt. Attempts 24.

(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intentionis guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. Question of law

(2) The question whether

an act or omission by a person who has an intent to commit an offence is or is not mere preparation to committhe offence, and too remote to constitute an attempt to commit the offence, is a question of law. [69]

Section 660 does not refer to “an intervening event.” Rather, in the offence of attempt, where the mens rea is complete,

it is sometimes the case that the actus reus of the completed offence is deficient, and sometimes this will be so because an attendantcircumstance is lacking. An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards itscommission. Physical impossibility is not a defence to a charge of attempt. The crime of attempt consists of intent to commit thecompleted offence together with some act more than preparatory taken in furtherance of the attempt. [70] In United States of America v.

Dynar, (SCC), [1997] 2 S.C.R. 462, the basic principle was describedin a succinct and clear manner. The majority wrote (at para. 74): ….

The law of attempt is engaged only when, as in this case, the mens rea of the completed offence is present entirely and the actusreus of it is present in an incomplete but more-than-merely-preparatory way. [71] Thus, the Supreme Court in Dynar was clear that an attempt to commit an offence is present whether or not it wasactually possible under the circumstances to commit the offence. “On its face, the statute is indifferent about whether or not the attemptmight possibly have succeeded” (at para. 49). [72] Particularly relevant is the example the court in Dynar uses of a man who takes his own umbrella from an umbrellastand intending to steal the umbrella of another person.

Nonetheless, he is guilty of attempt since, as the court explained (at para. 62): …. That this man’s design is premised on a mistaken understanding of the facts does not make it any less his design. A mistaken beliefcannot be eliminated from the description of a person’s mental state simply because it is mistaken. See also R. v. Sarrazin (R.) et al., 2010 ONCA 577, 268 O.A.C. 200, aff’d 2011 SCC 54, [2011] 3 S.C.R. 505, and Williams at paras. 60-66. [73] In our case, the accused intended to transmit HIV by spitting.

It is immaterial whether he thought his saliva alone wassufficient to do so or he thought that the blood from the cut on his lip mixed with his saliva was sufficient to do so. It is immaterial that itwas not a realistic possibility to transmit HIV in this way. His spitting at the police officer coupled with his comments that he had HIV,his threats and his hiding behind the door of the interview room show a completed mens rea along with action that was more thanpreparatory. The criminal element of attempt may lie solely in the intent. See Ancio v.

The Queen, (SCC), [1984] 1S.C.R. 225 at pp. 247-48. [74] Further, instructive comments are made by Cory and Iacobucci JJ., in Dynar (at para. 67): Therefore, we conclude that s. 24(1) draws no distinction between attempts to do the possible but by inadequate means, attempts to dothe physically impossible, and attempts to do something that turns out to be impossible “following completion”. All are varieties ofattempts to do the “factually impossible” and all are crimes. Only attempts to commit imaginary crimes fall outside the scope of theprovision. …. The decisions in Detering v.

The Queen, (SCC), [1982] 2 S.C.R. 583, and Dynar were cited with approval by this courtin R. v. Reis (J.A.), 2003 MBCA 98, 177 Man.R. (2d) 152. [75] More to the point of the instant case is the decision of the Supreme Court in Williams. In Williams, as in this case, theCrown was able to prove every element of the offence of aggravated assault except for one element of the actus reus: the endangermentof life. The Crown proved that, at the time the accused had unprotected sex with the complainant, he knew he was HIV-positive and thathe intended her to be exposed to the lethal consequences of HIV.

However, it was possible that the accused had transmitted the diseaseto the complainant before he discovered he had the disease. The court held that, while failure to prove endangerment of life was fatal tothe prosecution of aggravated assault, it was not fatal to a conviction for attempted aggravated assault. Williams was followed in R. v.Thomas, 2011 ONSC 7136 (QL), and R. v. Pottelberg, 2010 ONSC 5756 (QL). [76] The finding of attempted aggravated assault in Williams was criticized in several academic articles, including DavidMacAlister & Simon N.

Verdun-Jones, “Unprotected Sexual Intercourse with Knowledge of HIV-Positive Results: AttemptedAggravated Assault or the Need for Legislative Reform?” (2003), 13 C.R. (6th) 257. The authors criticize the Supreme Court’s assertionthat the accused intended to infect his partner with the HIV virus.

They stated that it was unclear whether Binnie J. was insinuating thatthe accused actually held a direct intention to infect the complainant, whether he was confusing intention with recklessness and therebyfinding intention when the accused was really only reckless, or whether he was implying indirect intention was present, and wouldsuffice in the circumstances of an attempt. See also Isabel Grant, “Developments in Substantive Criminal Law: The 2003-2004 Term”(2004) 26 Sup. Ct. L.

Rev. 215, and Doherty J.A. in Sarrazin at para. 48. [77] It is unnecessary for me to address this criticism and discuss whether recklessness or indirect intent is sufficient toestablish the intent necessary for an attempt. The accused’s mens rea in this case was clear. Even if the highest level of mens rea isrequired for a conviction on the attempt, my view is that the Crown proved that level of intent beyond a reasonable doubt.

Misapprehension of the Evidence [78] The Crown also submits that the trial judge misapprehended and/or misused some of the evidence. In particular, theCrown argues that the trial judge erred in relying on Mr. Loeppky’s evidence with respect to the likelihood of transmission when thatwitness was never qualified as an expert. [79] Mr. Loeppky is the nurse who attended to the accused when he first came in to be tested. He reviewed the positiveresults with the accused and gave him information as to what steps to take to live with the virus and how to avoid transmission.

He wascertified as an HIV clinician, but his testimony was not offered as that of an expert. Instead, his testimony was direct evidence as to themedical history of the accused and, in particular, the information with which the accused was provided. He was called to establish whathe had told the accused. He was not called to give opinion evidence about the likelihood of transmission. [80] In her reasons, the trial judge stated (at para. 64): ….

The best evidence available on the effect of [the accused’s] likely viral load of 4.73 to 4.74 and fluctuating CD4 reading on thequestion of risk, where blood is mixed with saliva in an unknown quantity and comes into contact with the eye and possibly the mucousmembrane of the nose is that of the nurse, Mr. [L], that risk of transmission was “low to negligible” and Dr. [D]’s opinion that thepossibility of transmission could not be eliminated. [81] The issue of whether someone is qualified to give opinion evidence is a question of law.

If the trial judge assessed Mr.Loeppky’s evidence as that of an expert, then she assessed his evidence on a wrong legal principle and that would be an error of law. SeeR. v. Mohan, (SCC), [1994] 2 S.C.R. 9, and R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, and see Alan W. Bryant,Sidney N. Lederman & Michelle K. Fuerst, The Law of Evidence in Canada, 3d ed. (Markham: LexisNexis Canada Inc., 2009) at para.12.131. [82] On the face of it, therefore, the trial judge here committed an error when she treated Mr. Loeppky as an expert withoutconducting a formal voir dire with respect to his qualifications.

However, the presence of an error of law is not sufficient to overturn anacquittal on a Crown appeal. There is an evidentiary burden on the Crown to show a nexus between the legal error and the verdictentered. See R. v. R.G.B., 2012 MBCA 5, 275 Man.R. (2d) 119, and R. v. O’Kane (P.J.) et al., 2012 MBCA 82, 284 Man.R. (2d) 72. [83] A similar error of law to the one alleged in this case occurred in R. v. Marquard, (SCC), [1993] 4S.C.R. 223. The accused in that case was charged with aggravated assault of her granddaughter as a result of the child having received asevere facial burn. A number of doctors testified.

Some were qualified as experts, and one was not, but they all offered opinionsoutside of their area of expertise. The accused submitted that the judge erred in admitting opinion evidence given by experts outside oftheir area of expertise. [84] McLauchlin J. (as she then was) stated as follows (at pp. 242-44): The problem raised in this case stems from the way the witnesses were qualified as experts. There is little doubt that they all possessedsome special knowledge relating to the matters on which they testified, alleged to lie outside their expertise. While Dr.

Mian and Dr.Campbell were not medical specialists in burns, there can be no doubt that as practising physicians they possessed an expertise on burnswhich is not possessed by the ordinary untrained person. …. The only requirement for the admission of expert opinion is that the“expert witness possesses special knowledge and experience going beyond that of the trier of fact”: R. v. Béland, (SCC),[1987] 2 S.C.R. 398, at p. 415. Deficiencies in the expertise go to weight, not admissibility. …. . . . . .

Important as the initial qualification of an expert witness may be, it would be overly technical to reject expert evidence simply becausethe witness ventures an opinion beyond the area of expertise in which he or she has been qualified. …. In the absence of objection, atechnical failure to qualify a witness who clearly has expertise in the area will not mean that the witness’s evidence should be struck.

However, if the witness is not shown to have possessed expertise to testify in the area, his or her evidence must be disregarded and thejury so instructed. [85] So, while the failure of a trial judge to qualify a witness as an expert, on the face of it, constitutes an error in law, not allerrors involving an expert witness rise to a significant level.

Where the witness has some knowledge to impart which rises above thelevel of the ordinary person, but has not been formally qualified, that witness’s evidence is not struck, but that fact may go to the weightgiven the evidence. [86] Where the witness is not shown to have possessed the expertise to testify in the area, his or her evidence is to bedisregarded, but that error will not result in the appeal being allowed unless a nexus can be shown between reliance on that evidence andthe verdict.

[87] In this case, while Mr. Loeppky was never formally qualified by the court as an expert, he did have some expertise“which is likely to be outside the experience and knowledge of a judge or jury” (Dickson J. in R. v. Abbey, (SCC),[1982] 2 S.C.R. 24, and Mohan at pp. 23-24). He testified that he had worked at Nine Circles Community Health Centre since 2004. Nine Circles is a community health clinic that serves people who are HIV-positive and are at risk for AIDS. He was certified as an HIVclinician in 2007.

He explained what a HIV clinician was: It’s a specialty with HIV, so we take a course and you have to have so many hours working with HIV positive people prior to taking thiscourse and allows us to, gives us more education regarding how HIV is spread, what, prevention, what populations are at risk. [88] Clearly Mr. Loeppky had some specialized education as to the transmission of HIV. If the trial judge was going to relyon that information, a formal voir dire should have been conducted and a determination made as to whether his evidence could assist thetrial judge in appreciating the matters in issue.

However, the lack of a voir dire has not resulted in appellate intervention where it wasevident that the witness had the expertise to testify as they did and no objection had been raised at trial. See, for example, R. v. Foley(J.P.) (1996), (BC CA), 75 B.C.A.C. 195, R. v. Rayner (D.V.), 2000 NSCA 143, 189 N.S.R. (2d) 144, and R. v. Korol(L.R.), 2009 BCCA 118 at para. 38, 268 B.C.A.C. 136. [89] Even if it could be said that Mr. Loeppky’s evidence had no value and should be disregarded, the trial judge had thesame evidence from Dr. Dillon, who was qualified as an expert and whose testimony is not challenged.

As mentioned, that error shouldnot automatically result in the appeal being allowed unless there is a nexus between the challenged evidence and the verdict. I do notbelieve that the Crown has met the burden of establishing a nexus between the legal error and the verdict rendered in this case.

Remedy [90] The final question remaining is whether this court should send the matter back for a new trial or whether it has thepower to overturn the acquittal on the charge of attempted aggravated assault and enter a conviction on that charge. [91] The powers of a Court of Appeal on a Crown appeal from acquittal are found in s. 686(4) of the Code: Appeal from acquittal 686.

(4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible onaccount of mental disorder, the court of appeal may (

a) dismiss the appeal; or (

b) allow the appeal, set aside the verdict and (

i) order a new trial, or (ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which,in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remitthe matter to the trial court and direct the trial court to impose a sentence that is warranted in law. [92] In the leading decision of R. v.

Cassidy, (SCC), [1989] 2 S.C.R. 345, Lamer J. commented on theavailability of substituting a guilty verdict (at pp. 354-55): The Crown replies that the Court of Appeal may allow a Crown appeal against an acquittal entered by a trial judge and substitute averdict of guilty where the Crown establishes that an error of law was committed at trial, satisfies the Court of Appeal that, had therebeen a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should havebeen found guilty but for the error of law.

In this respect, the principle that has been established at common law is that all the findingsnecessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue (Vézeau v. The Queen, (SCC), [1977] 2 S.C.R. 277, at pp. 291-92, and R. v. Courville (1982), (ON CA), 2 C.C.C. (3d) 118 (Ont.C.A.), at p. 125, aff. sub nom., Courville v. The Queen, (SCC), [1985] 1 S.C.R. 847). ....

[93] The reasoning in Cassidy continues to be cited, with approval, by both the Supreme Court and appellate courts (see R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330, R. v. Audet, (SCC), [1996] 2 S.C.R. 171, and R. v.Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60). Most recently, the reasoning in Cassidy was applied by this court in R. v. Schritt, 2013MBCA 32. In that case, the trial judge erred in law by failing to direct his mind to a lesser and included offence. Chartier C.J.M. wrote(at para. 4): The question then becomes whether we should enter a conviction on the lesser offence or order a new trial.

We have been persuadedfrom our review of the trial record, the admissions by the defence and the reasons for judgment that all of “the findings necessary tosupport a verdict of guilty” on the included offence were made or were not in issue at trial (see R. v. Cassidy, (SCC),[1989] 2 S.C.R. 345 at 354). As a result, we enter a verdict of guilt under s. 4(1) of the Controlled Drugs and Substances Act. [94] The Crown argues that the trial was completed and the accused chose not to call evidence.

It asks that the accused’sacquittals be overturned and the correct legal label be placed on the facts as found by the trial judge. [95] I agree with the Crown that the preferable course in this case would be to allow the appeal and enter a verdict of guiltywith respect to the offence for which the accused should have been found guilty, namely, attempted aggravated assault. There are nofurther facts to be found here and it is a question of law under s. 24(2) of the Code whether the accused’s act of spitting in the policeofficer’s face amounts to an attempt.

I am satisfied that the accused would have been found guilty of attempted aggravated assault butfor the trial judge’s error with respect to the law of attempt. [96] I would allow the appeal and substitute a conviction of attempted aggravated assault for the conviction of commonassault. I would remit the matter to the trial court for sentencing. J.A. I agree: J.A. I agree: J.A.