Sexual affair lasted for 18 months. Condoms were used on occasion, however the usual precautions against pregnancy were not used because the respondent told her that he had a vasectomy. The respondent went to a clinic, and he tested positive for HIV. He was given counseling. He chose to follow none of the recommendations. Complainant eventually got tested once and tested negative then again and tested positive for HIV. She confronted respondent and he denied ever being tested. She testified saying she wouldn’t have had sex with him if she knew he was HIV positive.
Can the accused be convicted of aggravated assault rather then attempted aggravated assault?
Was consent vitiated by consent by fraud?
An attempt is proven by demonstrating that significant portion of the actus reus has been completed even though not all of the elements of actus reus have been proven.
The absence of consent is subjective and determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred.
The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being willfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm (R v Godin).
An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission.
Convicted of attempted aggravated assault.
Judge says he is just applying the Ceurrier principle - But he did not apply the 2 steps of the Theroux test using and objective standard
*Cuerrier is better law