SUPREME COURT OF Nova Scotia
Citation: R. v. Bowser, 2020 NSSC 337
Date: 20201209
Docket: Halifax, No. 484780
Registry: Halifax
Between:
Her Majesty the Queen
v.
Gregory Howard Bowser
Restriction on Publication: s.486.4, s.486.5, and s.517(1) cc
TRIAL DECISION
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Judge: |
The Honourable Justice Kevin Coady |
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Heard: |
October 13, 14, 15, 2020 in Halifax, Nova Scotia |
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Oral Decision: |
December 9, 2020 |
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Counsel: |
Richard Hartlen, Crown Counsel Peter Planetta, Defence Counsel |
By the Court:
[1] Gregory Bowser stands charged with the following offence:
that he between the 26th day of April, 2018 and the 28th day of April, 2018, at, or near Halifax, in the County of Halifax, in the Province of Nova Scotia, did in committing a sexual assault on JB endanger the life of said JB thereby committing an aggravated sexual assault, contrary to Section 273(2)(b) of the Criminal Code.
On March 21, 2019, he entered a not guilty plea and, as such, a three-day trial ensued.
[2] It is helpful to review the narrative of the prosecution in advance. The accused, Mr. Bowser, is a gay man who was diagnosed with HIV in March, 2018, when he was 28 years old. The complainant, JB, is also a gay man. He met Mr. Bowser at a Halifax bathhouse on the evening of April 26, 2018 when he was 30 years old. They did not know each other before that date. JB was, and is, HIV negative.
[3] On April 26, 2018, these gentlemen attended at the Torpedo Sauna and Spa, a facility catering to the gay male community. After meeting, they performed various sexual acts on each other. Ultimately, Mr. Bowser had penetrative intercourse with JB. He did not use a condom. He did not disclose his HIV status in advance of intercourse.
[4] Pursuant to section 655 of the Criminal Code, Mr. Bowser made the following admissions (Exhibit 1):
1. On or about April 27 and 28, 2018, he had unprotected sex with JB, the Complainant in relation to the subject offence. The sexual activity included, but was not limited to, penetrative anal sex culminating in Mr. Bowser ejaculating into the body of JB.
2. As of the time of the sexual activity in question he had full knowledge that he had recently been diagnosed with HIV and was untreated.
3. In late March of 2018 he had been advised by Dr. Glenn Andrea, his family physician, that he had tested positive for HIV. Dr. Andrea also advised him of his responsibility to disclose his HIV status to any sexual partners and engage only in safer sexual practices, including mandatory condom use. This was reiterated to him when he met with Registered Nurse Rachel C. Harvey on April 4, 2018. He acknowledged to her that this had been explained to him by Dr. Andrea at the time he was given the HIV results.
4. On April 10, 2018, bloodwork was taken from Mr. Bowser. A microbiology/immunology report dated May 2, 2018 shows that said blood sample contained an HIV viral load of 71154 copies/mL.
5. He acknowledges notice of intention to produce the Medical Records attached hereto as Schedule “A” and consents to the admission of same as an exhibit in this proceeding for the truth of their contents.
6. He did not disclose his HIV status to the Complainant until after the subject sexual activity.
7. Mr. Bowser was arrested on June 14, 2018. He was properly given his rights to counsel and cautioned. He provided a video/audio recorded statement to the investigating officer. He admits that he gave this statement freely and on a voluntary basis and that it is admissible in this proceeding at the Crown’s discretion.
The document memorializing these admissions was personally signed by Mr. Bowser.
[5] The oral testimony of JB and Mr. Bowser does not materially differ. Any differences are contextual and do not challenge the Crown’s narrative.
[6] JB testified that, on April 26, 2018, he went to the bathhouse at 10:30 p.m. He went there seeking social interaction with like-minded gay men. He anticipated there might be sexual contact should he meet someone of interest. He did not consume any intoxicants on that day or on any other day. Upon entry he placed his clothing in a locker and was provided with a towel. Condoms and lubricant were freely available. Some hours later, Mr. Bowser arrived and the two engaged in non-sexual conversation. JB was attracted to Mr. Bowser and that appeal led to a series of consensual sexual acts in various locations throughout the venue. A third gentleman was involved in the initial sexual contact, which was limited to touching and mutual oral sex.
[7] On two occasions Mr. Bowser attempted penetrative anal intercourse without a condom and without advising of his HIV status. JB stated that, on one occasion, Mr. Bowser ejaculated into his body. He acknowledged that, on one occasion, he penetrated Mr. Bowser but did not climax then, or at anytime that “whole evening”. JB testified that safe sex is always foremost in his mind and there is an unspoken bathhouse agreement that safe sex is the rule. It appears from the evidence that JB’s safe sex strategy is to withdraw before ejaculation.
[8] JB testified that, throughout the evening, Mr. Bowser appeared to be under the influence of alcohol. Further, he testified that Mr. Bowser consumed what appeared to be cocaine. He stated that Mr. Bowser acknowledged that he drank too much before coming to the bathhouse and acknowledged that the substance was cocaine.
[9] At approximately 4 a.m. Mr. Bowser suggested they catch a cab to his home in Dartmouth. Upon arrival at the Dartmouth address, they got in the elevator to take them to the 12th floor. After stepping off the elevator, Mr. Bowser commented, “So you have HIV?” JB testified that at that moment “all pleasure plummeted” and that he experienced shock and disbelief. At first he thought he misheard Mr. Bowser. He got back on the elevator and they returned to the ground floor where JB called an ambulance. He was taken to the hospital where he received treatment. After the initial treatments, he reported the incident to police. In the weeks and months that followed, JB experienced great personal and professional discomfort as a result of his medical treatments.
[10] Mr. Bowser’s cautioned statement to the police was before the Court by consent. He also testified in his trial. In his statement he was entirely cooperative and forthcoming. He also stated he assumed JB was HIV positive. He asserted that JB penetrated him first and that “he put it in first before I could disclose.” Mr. Bowser further states that they both “came” inside each other. He stated, “I was on cocaine” that evening and that he had consumed a large bottle of wine before attending the bathhouse. He acknowledged a drinking problem and stated that, at the time, he would get drunk every day. He acknowledged that he had been diagnosed with a borderline personality disorder and that, at that time of his life, he created a “cycle of bad decisions”.
[11] Mr. Bowser’s trial testimony was unlike his statement in that he made no effort to minimize or mitigate the events of the night in question. He testified that he is presently 30 years old and is educated in the field of chemical engineering. He identifies as a gay man. He testified about his life in March and April, 2018. He had just lost his best friend in the world and had been diagnosed HIV positive. He stated it was a rough and stressful time, leaving him to feel isolated, lonely, unhappy and stigmatized. He lost friendships and was unable to secure employment or continue with his education. Mr. Bowser described his life, at that time, as an “eternity of despair”.
[12] Mr. Bowser’s testimony at trial did not materially differ from that of JB. He stated that, at the time, he was employed as a server at a Dartmouth restaurant. He was also living with his mother under strict house arrest conditions. On the day in question, he left work at 9:30 or 10 p.m. and met with co-workers at a local bar for about one hour. He drank three glasses of wine. He also bought a gram of cocaine at the bar which he consumed over the evening. He walked to his home where he played video games, consumed cocaine and drank a large bottle of wine. He remained home for about three hours until 2:30 a.m. when he took a cab to the bathhouse. He discussed his condition at the time as inebriated, not sober, and heavily intoxicated.
[13] Mr. Bowser testified that, shortly after arriving at the bathhouse, he met JB and another gentleman. All three were initially in a hot tub, where there was sexual contact involving all three. He acknowledges going to a downstairs space where he had penetrative intercourse with JB. He admits to not wearing a condom. Mr. Bowser described these acts as “a terrible series of events.” He said he was not thinking about his HIV status at the time and that he did not disclose. He denies that JB asked him to “come” inside of him. He does not deny ejaculating inside of JB.
[14] Mr. Bowser testified that he invited JB to his home at around 4:30 a.m. A cab was called. He testified that, while in the cab, he came to the full realization of what had happened. He stated that he was sobering up as the cocaine was gone and he had nothing to drink at the bathhouse. He knew he had to tell JB and he did that when getting off the elevator. JB called 911 and an ambulance arrived shortly thereafter.
[15] Section 273(1) of the Criminal Code defines aggravated sexual assault as follows:
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
The elements of the offence of aggravated sexual assault are as follows:
1. The identity of the offender.
2. The time and place of the sexual assault.
3. That the accused applied force directly or indirectly to the complainant.
4. That the accused intended to commit the sexual assault.
5. That the complainant did not consent to the sexual activity.
6. That the accused knew that the complainant did not validly consent.
7. That the assault was sexual in nature.
8. That the sexual assault by the accused wounded, maimed, disfigured or endangered the life of the complainant.
These elements of the offence charged have a different complexion when applied to this type of case.
[16] I am satisfied that the Crown has proven identity, time, and place beyond a reasonable doubt. I am similarly satisfied that the application of force has been proven. After all, force simply means physical contact and there can be force without violence. I am also satisfied that Mr. Bowser understands that not disclosing his HIV status was a vitiation of consent. Mr. Bowser acknowledged such in his own testimony. Given these conclusions, it all comes down to consent. It is well-established that unsafe sexual intercourse by a HIV-infected person, absent a condom and/or a low viral load, endangers the life of their sexual partner. Mr. Bowser was aware of the risk involved when he had unprotected sex with JB. That is evident by his decision to disclose to JB shortly after the intercourse. JB unequivocally stated that if he had known of Mr. Bowser’s HIV-positive status, he would not have participated in any sexual activity with Mr. Bowser.
[17] The last ingredient the Crown must prove is that the sexual assault by Mr. Bowser endangered the life of JB. To endanger a life means to place a person’s life in peril or risk. The peril must be actual and not a potential risk. Clearly, contracting HIV amounts to actual peril and can lead, if untreated, to AIDs and death. I am satisfied that, on all of the evidence, this element has been proven beyond a reasonable doubt.
[18] The Supreme Court of Canada addressed this type of offence in R. v. Mabior, [2012] 2 S.C.R. 584. The question before that Court was whether an HIV-positive person who engages in sexual relations without disclosing his condition commits aggravated sexual assault. The Court stated, at paragraph 2:
2 Sex without consent is sexual assault under s. 265 of the Criminal Code, R.S.C. 1985, c. C-46. R. v. Cuerrier, [1988] 2 S.C.R. 371, establishes that failure to advise a partner of one’s HIV status may constitute fraud vitiating consent. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault, attracting a maximum sentence of life imprisonment: Cuerrier, at para. 95; ss. 265, 268 and 273 Cr. C.
The Court rooted its decision in “fraud”, as set forth in section 265(3)(c) of the Criminal Code. It established that such fraud boils down to two elements. One, a dishonest act (either falsehoods or failure to disclose HIV status) and two, deprivation (denying the complainant knowledge which would have caused her to refuse sexual relations that exposed her to a significant risk of serious bodily harm).
[19] The Court, in Mabior, attempted to take a restrictive view of how lack of consent to sexual relations could be established and how consent could be negated by fraud. It found that a generous interpretation of fraud vitiating consent was required and stated at paragraph 48:
48 In keeping with the Charter values of equality and autonomy, we now see sexual assault not only as a crime associated with emotional and physical harm to the victim, but as the wrongful exploitation of another human being. To engage in sexual acts without the consent of another person is to treat him or her as an object and negate his or her human dignity. Although the Charter is not directly engaged, the values that animate it must be taken into account in interpreting s. 265(3) of the Criminal Code.
The Court recognized that criminalization of this type of contact is not the only path to follow. Several jurisdictions do not criminalize exposure absent transmission. The Court stated, at paragraphs 54 and 56:
54 Professor Grant summarizes the contrast between the Canadian approach and the approach taken by England, Australia and New Zealand as follows:
In Canada, the same charge of aggravated (sexual) assault is typically used regardless of the nature of the deception, whether there is an isolated incident of non-disclosure or an ongoing course of non-disclosure.
…
In all other jurisdictions the offence is characterized as the infliction of bodily harm, and not as non-consensual sexual contact.
56 In sum, while the experience of other jurisdictions is not conclusive, it sounds a note of caution against extending the criminal law beyond its appropriate reach in this complex and emerging area of the law.
While this line of thinking may be of great interest to the legal mind, I must apply the law as it presently exists in this jurisdiction.
[20] The Supreme Court of Canada, in the earlier decision of R. v. Cuerrier, [1998] 2 S.C.R. 371, addressed this area of the law. The central issue in that appeal was the interpretation to be given to the word “fraud” as it appears in s. 265(3)(c) of the Criminal Code. For more than a century, the law had been settled in that fraud did not vitiate consent unless the mistake goes to the nature of the act or the identity of the partner. Fraud as to collateral aspects of a consensual encounter, like the possibility of contracting sexually-transmitted diseases, does not vitiate consent. The Crown asked the Court to rule that deceiving one’s partner about the fact that one has HIV vitiates consent, converting consensual sex into assault.
[21] Justice Cory addressed this question at paragraph 105:
In my opinion, both the legislative history and the plain language of the provision suggest that Parliament intended to move away from the rigidity of the common law requirement that fraud must relate to the nature and quality of the act. The repeal of statutory language imposing this requirement and its replacement by a reference simply to fraud indicates that Parliament’s intention was to provide a more flexible concept of fraud in assault and sexual assault cases.
Justice Cory noted that, as early as 1917, courts in the United States accepted that a woman’s consent to sexual intercourse is vitiated by the man’s fraudulent concealment of the risk of infection from venereal disease. He further stated that it is now settled that failure to disclose HIV can constitute fraud which may vitiate consent. Further that without disclosure of HIV status there cannot be consent. The consent cannot simply be to have sexual intercourse. Rather, it must be consent to have intercourse with a partner who is HIV positive. While there may be several policy issues at play, the law on point is well settled.
[22] Mr. Bowser chose to testify at trial. As I stated earlier, his evidence did not disclose a defence. When defence counsel was asked what defence Mr. Bowser’s evidence disclosed, he replied he was requiring the Crown to prove its case. I did not find a defence in his testimony. The inquiry now is whether, on all evidence, I am satisfied that the Crown has proven all elements of the offence beyond a reasonable doubt. I am so satisfied. I am not of the view that the principles laid down in R. v. W.(D), [1991] 1 S.C.R. 742 need to be applied in this case. I believe the evidence of both Mr. Bowser and JB. Their evidence is not materially adverse. On all of the evidence, I am satisfied that Mr. Bowser is guilty of aggravated sexual assault. A conviction will be entered.
Coady, J.