James Steven Wilcox v. Her Majesty the Queen

(Quebec) (Criminal) (As of Right)




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Criminal law - Aggravated sexual assault - Consent - Evidence - Whether the trial judge failed to properly consider and apply R. v. W. (D.), [1991] 1 S.C.R. 742, when assessing the evidence as a whole - Whether the trial judge’s findings were unsupported by the evidence when assessed as a whole.

The appellant was convicted of aggravated sexual assault. The trial judge found that he knowingly exposed the complainant to HIV without the complainant’s consent, by engaging in unprotected anal intercourse with him. The complainant tested negative for the virus at the time of the assault, but was later found to be HIV positive. The appellant appealed his conviction, arguing, among other things, that his failure to disclose that he had HIV was immaterial because the complainant would still have consented to the unprotected intercourse. A majority of the Court of Appeal dismissed the appeal. Hilton J.A., dissenting, would have allowed the appeal and ordered a new trial on the basis that the trial judge erred in his application of R. v. W. (D.), [1991] 1 S.C.R. 742, and in his analysis of the evidence as a whole relating to whether there was a reasonable doubt as to the appellant’s guilt.

Lower Court Rulings

September 12, 2011
Court of Quebec

Appellant convicted of aggravated sexual assault
February 20, 2014
Court of Appeal of Quebec (Montréal)

2014 QCCA 321, 500-10-005019-110
Appeal dismissed