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ONTARIO: HIV positive man who didn't tell partners wants conviction reopened

His lawyer says he wants a judge to hear fresh evidence
The Sault Ste. Marie Courthouse is pictured in this file photo. Michael Purvis/SooToday
SAULT STE. MARIE — A man wants the judge who convicted him last fall of aggravated sexual assault after he failed to disclose his HIV-positive status to three women to re-open his case so he can provide "new evidence" to the court.

Superior Court Justice Edward Gareau found Nicholas Goodchild guilty of the offences involving a trio of sexual partners in November, following a seven-day trial that took place in June and July 2017.

The women had sexual relations with Goodchild between July 2013 and April 2014.

On Monday, Gareau heard an application, filed by the defence, to re-open Goodchild's conviction so that he can call evidence from a Manitoba doctor, qualified by the court as an expert on biology and the risk of transmission of HIV.

Toronto lawyer Michael Lacy told the court he wasn't requesting a mistrial, but wanted the case re-opened, so that Gareau could hear evidence from Dr. John Richard Middleton Smith.

The central question for the court is whether it is in the interest of justice to allow the applicant the opportunity to address "fresh evidence" and "would the failure to do so be a miscarriage of justice," he said.

Prosecutor Dana Peterson argued that the application should be denied, maintaining that Smith had nothing new to add to the evidence the court heard from another expert during the trial.

"There was no miscarriage of justice here," the assistant Crown attorney maintained, suggesting testimony the court heard from Smith on Monday didn't "cast a new light on anything."

The issue in this case was the effectiveness of condoms. It was acknowledged in an agreed statement of facts and medical information provided at the trial that Goodchild was untreated at the time of the occurrences and the only protection used was condoms, she said.

Peterson said the court had heard scientific evidence from an expert witness, and Smith hasn't identified any drastic changes in the use of condoms.

"All of this evidence was before you, and having it presented by two doctors wouldn't have made a difference," she told the judge.

"How could it. It was the same evidence."

Lacy said "this is a very serious case" for Goodchild, who has been convicted of one of the most serious crimes in the Criminal Code.

"Understanding of HIV is evolving," he said, urging Gareau to re-open the conviction and hear the evidence.

"Only then will justice be served in this case," he said, after noting there would be latitude for the Crown to call further evidence.

Following his Nov. 15 conviction, Goodchild's sentencing was adjourned until March 26 so that pre-sentence and Gladue reports could be prepared.

The sentencing didn't go ahead on that date, because the Gladue report wasn't ready, and it was put over until May 14.

Last month, the sentencing was again delayed when Goodchild brought the application to re-open his conviction, and Gareau agreed to hear the motion.

The case centred around the issue of "significant risk of bodily harm" and whether there was a realistic possibility of transmission.

One of the women tested positive for HIV in October 2014.

The early diagnosis enabled effective treatment, the court was told during the trial.

Two of the complainants met Goodchild through a dating website, while the third was introduced to him by a member of his family.

Gareau heard neither the women nor Goodchild intended or wanted long-term or "boyfriend/girlfriend" dating relationships and the sole purpose of their encounters was to have sexual relations.

Prior to Monday, Lacy and Peterson provided the court with written arguments, case law, factums and sworn affidavits in support of their positions on re-opening the case.

The Crown cross-examined Smith on his affidavit yesterday, via video hookup.

He told Peterson he retired from Manitoba's HIV care program 10 years ago, but continues to practise medicine.

Gareau also heard from Goodchild's lawyer, Jennifer Tremblay-Hall, who outlined the steps she had taken to get an HIV expert to testify at the young man's trial, and the restrictions placed on her by Legal Aid, including a requirement that she find someone in Ontario.


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