The accused is appealing his conviction of negligence causing bodily harm and aggravated assault. He engaged in unprotected sex without disclosing his HIV-positive status, which resulted in his partners contracting HIV. The appeal was allowed and a new trial ordered. The court found that failing to disclose HIV status prior to unprotected sex does not constitute fraud or vitiate consent under Canadian law.

1. R v. Ssenyonga (1993), 8 C.C.C. (3d) 257, 21 C.R. (4th) 128 (Ont. Ct. Jus. (Gen. div.))
Procedural History:
The accused in this case is before the Ontario Court of Justice. He is charged with three counts
of negligence causing bodily harm and three counts of aggravated assault. He is looking to
appeal and be granted a new trial.
Facts:
 The accused knew he was HIV positive
 The accused knew that he could transmit HIV through unprotected sex
 He failed to disclose his HIV status prior to engaging in unprotected sexual intercourse
with the complainants
 The complainants claimthat they would not have engaged in unprotected sex with the
accused had they known of his HIV status
 The complainants contracted HIV as a direct result of their having unprotected sex with
the accused
Issues:
1. Does knowingly engaging in sexual intercourse with someone and not disclosing one’s
HIV positive status constitute fraud?
2. Is consent to sexual intercourse vitiated when the other party has withheld HIV positive
status?
Decision:
Appeal allowed and a new trial has been ordered
Ratio:
It is not an indictable offence to engage in unprotected sexual intercourse with someone and
not disclose HIV positive status.
Reasons:
1. Under the Criminal Code s.265.3 the accused’s actions do not constitute fraud they do
not speak to the nature or quality of the act.
2. Consent is not vitiated by the non-discloser of HIV positive status re: R v. Clarence
(1888), 22, QBD 23 (CCR)