R. v. Gauthier

2021 BCSC 968 R. v. Gauthier IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Gauthier, 2021 BCSC 968 Date: 20210520 Docket: 66844 Registry: Chilliwack Regina v. Steven Stewart Gauthier Restriction on publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting, or transmission in any way of evidence that could identify a complainant or witness. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Devlin Reasons for Judgment re: Defence Application to Reopen Counsel for Crown: G.P. Barnes Counsel for Accused: S. Wright Place and Dates of Hearing: New Westminster, B.C. May 6, 7, 2021 Place and Date Ruling Given to Parties with Reasons to Follow: New Westminster, B.C. May 18, 2021 Place and Date of Judgment: Chilliwack, B.C. May 20, 2021 Introduction [1] On February 5, 2020 I convicted Mr. Gauthier of one count of aggravated sexual assault of his intimate partner R.G. I found as a fact that Mr. Gauthier had failed to advise R.G. of his HIV-positive status prior to engaging in sexual activity with her. This is an application by Mr. Gauthier for an order reopening the defence case and for a declaration of a mistrial. The defence takes the position that there was evidence available that would establish the complainant had knowledge of Mr. Gauthier's HIV-positive status, and that, should the Court find that the test for reopening is met, a mistrial should be declared. The Crown opposes the application. Procedural History [2] Following my ruling on February 5, 2020, a sentencing hearing was scheduled for April 3, 2020. However, due to the COVID-19 pandemic, the sentencing hearing was further adjourned and then re-scheduled for September 25, 2020. At that appearance, Mr. Price, defence counsel at trial, advised he had recently received some new information and required an adjournment. At the next appearance on October 26, 2020 I permitted Mr. Price to withdraw as counsel. I was also advised that circumstances necessitated a change in Crown counsel. Eventually, Ms. Barnes assumed conduct of the file for the Crown and Mr. Gauthier obtained new counsel, Mr. Wright. At the request of defence counsel, I granted a further adjournment of the sentencing hearing. On February 22, 2021, Mr. Wright filed a notice of application seeking to reopen the defence case. [3] The proposed evidence consists of a document allegedly created by Mr. Gauthier and discovered by his brother Rick Gauthier post-conviction, which sets out an acknowledgment that Mr. Gauthier was HIV-positive and is purported to have been signed by the complainant on October 30, 2016 (the "note"). The defence applies to introduce fresh evidence from Mr. Gauthier and his brother Rick Gauthier (or "Rick") about the creation and discovery of the note. In addition, the defence proposes tendering the testimony of two additional witnesses - Cody Bourdon (or "Cody" or "Mr. Bourdon") and Jasmin Graham (or "Jasmin" or "Ms. Graham") - regarding their discussions with R.G. about Mr. Gauthier's HIV-positive status, as well as fresh evidence from Michael Gauthier (or "Michael"). In support of this application, affidavits of Mr. Gauthier, his brother Rick, his sons Michael and Cody, and Jasmin were filed. The Crown cross-examined on each of the affidavits. [4] The application took place on May 6 and 7, 2021 and on May 18, 2021, I advised counsel that the application to reopen was dismissed with reasons to follow. These are those reasons. Background Facts [5] After the hearing of several pre-trial applications, the trial commenced on October 28, 2019. In my Reasons for Judgment indexed at R. v. Gauthier, 2020 BCSC 146 [Trial Reasons], I found Mr. Gauthier guilty of aggravated sexual assault, but acquitted him of the charges of sexual assault and assault. I will refer to the passages from my Trial Reasons that deal with my findings regarding Mr. Gauthier's failure to inform the complainant of his HIV-positive status, as they provide the context within which I must assess the merits of this application. [6] Both the complainant, R.G., and Mr. Gauthier testified at trial. They both testified that in late June or early July 2016 a friend of R.G.'s - M.A. - introduced her to Mr. Gauthier at his farm near Cultus Lake, B.C. I found that by August 2016, R.G. and Mr. Gauthier were engaged in a sexual relationship. R.G. testified that her friend M.A. had told her that Mr. Gauthier was HIV-positive, and that she subsequently had a conversation with Mr. Gauthier in which she asked him about his HIV status. In convicting Mr. Gauthier, I did not accept Mr. Gauthier's evidence that he told R.G. about his HIV status prior to engaging in sexual intercourse with her. I found as facts that R.G.'s consent to sexual intercourse with Mr. Gauthier was vitiated by Mr. Gauthier's failure to disclose his HIV status - that Mr. Gauthier posed a realistic risk of HIV transmission to R.G. at the relevant time, as not only were his viral loads not low (i.e., I was not satisfied that his viral load count, during the relevant period, was ever at a level other than one which posed a realistic possibility of transmission), but they also engaged in unprotected sexual contact, and that R.G. would not have consented had she known Mr. Gauthier was HIV-positive: Trial Reasons at paras. 87-88, 90-97. At paras. 10-12 of my Trial Reasons, I set out the circumstances surrounding the discussion between Mr. Gauthier and R.G. with respect to his HIV status that occurred in August 2016 before R.G. moved onto Mr. Gauthier's farm: [10] By August 2016, R.G. and Mr. Gauthier were in a sexual relationship and she was visiting him on the farm approximately once per week. They used condoms. R.G. testified that M.A. told her that Mr. Gauthier had HIV. R.G. asked Mr. Gauthier about his HIV status while they were sitting inside his trailer on the farm. R.G. told Mr. Gauthier that both his niece and M.A. had told her he was HIV positive. She said she spoke to Mr. Gauthier in a direct and clear manner, asking him: "do I need to be worried that I will contract HIV?" R.G. said Mr. Gauthier became very agitated and told her: "no, I have an immune disorder but you cannot contract it". R.G. asked again: "so you don't have HIV?" and he responded "no" and claimed the people who said he did, were slandering his name to make him look bad so she would not want to be with him. R.G. said she trusted Mr. Gauthier and believed him. At the time, she was ignorant about the disease and assumed that anyone who had it would appear gaunt and sickly. Mr. Gauthier appeared strong and muscular so she assumed he was healthy. [11] R.G. testified that after their discussion about HIV, they decided to stop using condoms. She cared very deeply for Mr. Gauthier and stated that had he told her he had HIV, she would have consulted a doctor about what to do and would have insisted on condom protection. [12] During the months of September and October 2016, while still residing at her parents' residence, R.G. spent more time with Mr. Gauthier and they continued their sexual relationship. R.G. estimated they had intercourse almost every time they were together. She also testified that she continued to consume alcohol and marihuana during this period. [7] Mr. Gauthier testified that soon after he met R.G., they went to Cultus Lake to have a drink at a karaoke bar. He said that it was during this evening that R.G. told him she had heard from others that he had HIV. Mr. Gauthier testified: "yeah, and that's when we talked and that was it, and we didn't discuss it": Trial Reasons at para. 63. Starting at para. 88 of my Trial Reasons, I set out my reasons for rejecting Mr. Gauthier's evidence with respect to the disclosure of his HIV status to R.G., as follows: [88] I do not accept Mr. Gauthier's evidence that he told R.G. about his HIV status. His evidence was internally contradictory and inconsistent on this point. I found Mr. Gauthier to be particularly evasive on this important point. Mr. Gauthier simply denied that the conversation in the trailer, described by R.G., ever took place. [89] During cross-examination Mr. Gauthier provided various versions of his conversation with R.G. ranging from: (a) telling her he had a non-transferable autoimmune deficiency; (b) telling her he acquired HIV from a blood transfusion as a child; (c) telling her he was HIV positive, but that he was taking pills and was non-transferable; (d) telling her he had a blood disorder; (e) telling her his viral loads were good, but qualifying his answer about his viral loads by repeatedly stating "as far as I know, I know no different" and also contradicting himself at one point by saying they never discussed viral loads; and (f) stating that R.G. was the one who "talked me into this that this would be okay". [90] Mr. Gauthier was vague and evasive in his testimony both in chief, and cross-examination. When pressed by the Crown to explain what he told R.G., Mr. Gauthier resorted to the refrain "as far as I know, I know no different", which I found to be an effort to deflect responsibility from himself. I find this to be Mr. Gauthier's attempt to couch that which he could not deny in terms that would be conducive to his defence. A unifying theme underpinning his testimony is that he was aware, and knew, when asked by R.G., that there was something he ought to disclose. He disclosed something - but I find he failed to disclose to R.G. the exact truth of his HIV status: that he had it, and if she had sexual intercourse with him, there was a realistic possibility she would be exposed to infection. [91] I accept, as both Mr. Gauthier and R.G. testified, that they used condoms during sexual intercourse in the early stages of their relationship. However, I also accept R.G.'s testimony that the parties eventually decided to stop using condoms. It is difficult, on my assessment of the evidence, to accept Mr. Gauthier's categorical assertion that he and R.G. "always" used condoms. I find that this does not accurately reflect the parties' sexual practices. [8] On this application, the defence proposes to call Mr. Gauthier's brother, Rick, and Mr. Gauthier's son, Michael. Both of these proposed witnesses testified at trial and I summarized their evidence as follows in my Trial Reasons: [52] The defence called Mr. Gauthier's brother, Rick Gauthier, and Mr. Gauthier's son, Michael Gauthier. Both testified that they knew Mr. Gauthier was HIV positive and they believed he did not conceal his condition. They also both testified that they had met R.G. and knew she was in a romantic relationship with Mr. Gauthier. Rick Gauthier said he told R.G. at least twice that his brother was HIV positive. Rick Gauthier also testified that Mr. Gauthier was taking his HIV meds in 2016 and 2017 and kept them in a container in his trailer. With respect to R.G., Rick Gauthier testified that when he would see R.G., she always appeared "glitched out" and angry although he could not provide specific instances to substantiate his observations. [53] Michael Gauthier said he recalled one occasion where he asked his father if he had taken his medications in the presence of R.G. However, he also advised he was distracted with some personal matters at the time and does not specifically recall details between 2016 and 2017. The Evidence Heard on the Application [9] As stated earlier, five affidavits were filed in support of this application and the Crown cross-examined on each. The evidence of Mr. Gauthier and of his brother Rick dealt with the alleged creation and discovery of the proposed documentary evidence (the note). The evidence of Mr. Gauthier's sons Michael and Cody, and that of Jasmin Graham dealt with discussions they allegedly had with R.G. regarding Mr. Gauthier's HIV-positive status. [10] Attached to the affidavits of Mr. Gauthier, Rick, and Michael is a copy of the note, which is handwritten on a piece of note-paper and dated "Oct 30 2016". Although it is somewhat difficult to discern the writing, it appears to contain the following text: This is a state ment from S Gauthier and [R.g.] we have both discussed my HiV Status and we bauth feel that using condoms would make it Safe for [R.] as well for my Self. Now it up both of us will take proper percautions [11] Mr. Gauthier testified that he created the note at the suggestion of his former partner D.R., who he said contacted him to advise that the police were inquiring about whether R.G. knew about his HIV status. Much like his testimony at trial, his explanation regarding his contact with D.R. was convoluted. He said she had broken into his residence and stolen items, including cash and his car keys, and that she was working with the police. It was unclear when this alleged break-in occurred, or when D.R. allegedly contacted him suggesting that he get R.G. to sign a letter confirming R.G.'s knowledge of his HIV status. He also admitted that when D.R. allegedly called him to suggest he get R.G. to sign such a letter, that he was on bail with respect to a criminal charge involving D.R. and was prohibited from communicating with her. When asked to explain why he communicated with D.R. he said "my kindness is my weakness". In response to questions about his breach of a bail condition regarding contact with D.R. he said "true but not true". [12] Mr. Gauthier testified that he wrote the note while in his trailer with R.G. He recalled that she was getting ready to go out grocery shopping. He said he signed the note, left it for her to sign, and then left to work in his barn. When he returned to the trailer he saw that R.G. had signed the note, and he put it in his back pocket. Sometime later that day he gave the note to his brother Rick for safe keeping. Mr. Gauthier explained that Rick kept many of his important documents because in the past his former partner D.R. had broken into his trailer and taken his possessions, including cash. [13] Mr. Gauthier had a variety of explanations for why it was that he did not bring this note to the attention of his counsel at any time during the trial. He said he forgot about it and claimed he had a lot on his mind due to the trial, particularly because he did not have any power in his house for over a year, so he was in "survival mode". He also claimed he had memory issues and that he suffered a head trauma in 2014 - neither of these claims was supported by the evidence I heard either at trial or on this application. Despite his alleged memory issues, he was capable of providing a significant amount of detail regarding the creation of the note. He acknowledged that the note was crucial to his defence and stated that, despite meeting with his counsel before trial and testifying for several days, he did not remember the note. When confronted with the allegation that he forged the note, he denied doing so, although he agreed he did not actually see R.G. sign the note. [14] Rick Gauthier's explanation regarding the discovery of the note was also convoluted and nonsensical. He said that sometime around Christmas, while he was at his brother's farm, he was given the note to keep with the other documents he had been given by Mr. Gauthier. He said he never read the document. When asked why he never looked at the paperwork his brother had given him before he testified for the defence at the trial, he was dismissive, stating he was "pretty darn busy" and never thought to look at the paperwork until after the conviction. He said that after the conviction, "I figured it got pretty serious, so I looked through the case to see what he'd given me" because "it kinda dawned on me - you'd better start looking to help this boy, because it ain't getting any better". When pressed about the discovery of the note he changed his explanation, stating that he did not feel like he needed to look through the paperwork after Mr. Gauthier was convicted - that he just started looking through the files one day because he was bored; then further stating that the reason he looked at the paperwork was because he was bothered by the D.R. stuff, which I assume is a reference to the criminal matters involving his brother and D.R., although his evidence was difficult to follow. Rick also testified that at some point after the conviction he tried to give the note to Mr. Price, but Mr. Price would not accept it. [15] Despite his convoluted explanation regarding the discovery of the note, Rick was very clear in his evidence that his brother had no memory issues, nor did he have to watch out for his brother or take care of him. [16] Michael Gauthier, when cross-examined on this application, acknowledged that he never heard his father speak to R.G. about his father's HIV status, nor did he ever speak to R.G. about it personally. He did recall on one occasion asking his father if his father had taken his pills in front of R.G. This portion of Michael's evidence was consistent with his evidence at trial. However, his evidence on the hearing of this application does not seem to align with his affidavit, in which he states that on one occasion while at his house, R.G. expressed her awareness of his father's HIV status. In contrast, on cross-examination, he agreed that his knowledge about what R.G. knew or did not know with respect to Mr. Gauthier's HIV status was not his personal knowledge. In Michael's affidavit, he also refers to his father's alleged memory issues, which does not align with the evidence of Rick, nor did it form part of Michael's evidence at trial. In his affidavit, Michael also states he was present when Mr. Gauthier met with his former counsel Mr. Price on two occasions before trial, and that he witnessed Mr. Gauthier suggest that Mr. Price contact Cody Bourdon and Jasmin Graham because they too might have evidence; however, at trial, Michael testified that he was distracted with some personal matters and did not specifically recall details between 2016 and 2017. [17] Cody Bourdon was an argumentative and evasive witness who was reluctant to respond to any questions during his cross-examination. When pressed on how he knew he spoke to R.G. in August 2016 about his father's HIV status, as set out in his affidavit, he reluctantly acknowledged that he had no actual memory of the date and based it on what Jasmin had told him when they discussed the matter. He said he was told by Mr. Price that he was not required to come to court during the trial, so he did not attend as a witness. [18] Jasmin Graham was the girlfriend of Cody Bourdon in the fall of 2016. She had known Mr. Gauthier since 2008 or 2009 and began dating his son Cody in 2015. During that time, she would often be at Mr. Gauthier's farm. She testified that she met R.G. at the farm in August 2016 and had a conversation with her about Mr. Gauthier's HIV status. Ms. Graham states in her affidavit that Mr. Gauthier always had a "scattered brain". Attached to her affidavit is an email dated June 5, 2020 from Ms. Graham in which she states she spoke to R.G. in the summer of 2016 about Mr. Gauthier's HIV status. Ms. Graham confirmed she wrote this email after she learned of Mr. Gauthier's conviction in 2020. She also confirmed that she knew that Mr. Gauthier was charged with the sexual assault prior to him being convicted. Her evidence was somewhat confused and vague. She said she spoke to Mr. Gauthier at some point and he said his lawyer would contact her, but she could not say when this conversation took place. Her testimony with respect to her phone number being provided to Mr. Price by Mr. Gauthier was internally inconsistent and illogical. She said she had no idea how to get in contact with Mr. Gauthier's lawyer, and stated that she never talked to Mr. Price. The Legal Principles [19] The legal principles on this application are not in dispute. In a judge-alone trial, the court retains a jurisdiction to reopen a case or to declare a mistrial where an application is advanced following conviction and prior to sentence: R. v. Bajwa, 2004 BCSC 1127 [Bajwa] at para. 18; R. v. Mack, 2002 BCCA 278 [Mack] at para. 37. However, the authorities are "replete with cautions" that this discretion to reopen a trial must be exercised with care, and only in exceptional circumstances: R. v. Match, 2016 BCCA 196 [Match] at para. 33; R. v. Ouellet, 2010 BCCA 588 [Ouellet] at para. 13; Bajwa at para. 18. [20] In considering an application to reopen the defence case and to admit fresh evidence after the trial judge has convicted the accused, it is well-settled that the four-factor test set out in Palmer v. The Queen (1979), [1980] 1 S.C.R. 759 [Palmer] should be applied: Bajwa at para. 20; R. v. D.D., 2013 BCSC 2286 [D.D.] at para. 15; R. v. Kowall, [1996] O.J. No. 2715 (C.A.) [Kowall] at para. 31, leave to appeal ref'd [1996] S.C.C.A. No. 487; R. v. Arabia, 2008 ONCA 565 [Arabia] at paras. 45-46; see also Match at para. 31. [21] As set out by Justice Lowry in Ouellet at para. 11, citing R. v. Hurley, 2010 SCC 18 at para. 14, the Palmer test is as follows: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases . . . . (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief, and (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. (See also Bajwa at para. 21; Mack at para. 38; Arabia at para. 46; D.D. at para. 15.) [22] These four Palmer criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction: Kowall at para. 32. In addition to these four factors, a trial judge must consider "whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial", as counsel make tactical decisions in every case, and so long as they are within the bounds of competence, "an accused must ordinarily live with the consequences of those decisions": Kowall at para. 32. [23] In relation to the first Palmer criteria - due diligence - defence counsel has referred me to Bajwa and to R. v. Drysdale, 2011 ONSC 5451 [Drysdale]. In Bajwa, Justice Holmes accepted the argument that where the application is to the original trier of fact (rather than to an appellate court), a lower threshold with respect to due diligence "may be indicated", as "[t]he original trier of fact has observed witnesses, heard the evidence and is positioned to utilize the observations from trial to assess reasonable doubt": at para. 29. [24] In Drysdale, Justice Trotter at para. 19 cited R. v. Warsing, [1998] 3 S.C.R. 579 where Justice Major wrote that the "due diligence" Palmer factor should remain only one factor to be considered, and that in the absence of due diligence, cases, particularly criminal ones, "should be assessed in light of other circumstances. If the evidence is compelling and the interests of justice require that it be admitted", then the failure to meet the due diligence test should yield, and should permit the admission of the evidence. Justice Trotter went on to say that, in other words, if he was to conclude that the evidence might have changed his mind in terms of assessing credibility, which was a crucial issue in that case, then a lack of due diligence should not stop him from admitting the evidence and "preventing what might turn out to be a miscarriage of justice": Drysdale at para. 19. [25] If the trial judge determines the test for reopening has been met, they must then decide whether to continue the trial or to declare a mistrial: Mack at para. 39; Kowall at para. 32; Arabia at para. 49. As stated by Justice Watt in Arabia at para. 49: [49] As a general rule, permission to re-open would be followed by setting aside the prior finding(s) of guilt, reception of the further evidence, together with any evidence offered by the prosecutor in reply, the submissions of counsel, and a decision on the adequacy of the prosecution's proof in light of the new evidence. In some instances, of course, a decision to receive the further evidence might require declaration of a mistrial, or a similar conclusion may be warranted absent a decision on admissibility, for example where the proposed evidence was not disclosed in a timely way by the prosecutor. [50] Kowall and cases following its lead furnish trial judges with workable criteria the application of which will inform the decision on re-opening. But where re-opening is permitted and a decision made to allow the introduction of further evidence, the trial judge will then be required to determine whether to continue proceedings to verdict, or to terminate them prior to final decision. Kowall and subsequent cases do not explore the preferential ordering of available remedies, or articulate the factors according to which the trial judge is to decide which is the more appropriate remedy. [51] Trial judges are more likely to encounter mistrial applications before, rather than after verdict or judgment, and when sitting with a jury, rather than in judge alone trials. [52] While there may be some uncertainty about the precise standard a judge is to apply in determining whether to declare a mistrial before verdict or judgment, it is well-settled that the authority to declare a mistrial should only be exercised in the clearest of cases. There seems no reason in principle to apply any less rigorous standard to applications for the same remedy made after verdict or judgment. [26] With these legal principles in mind, I turn to my analysis. ANALYSIS [27] I will conduct my analysis by considering the proposed evidence using the factors set out in Palmer. As the trial judge, I have the advantage of having heard all of the evidence at trial, and my analysis will be conducted with that contextual background. Could the proposed evidence have been adduced at trial with the exercise of due diligence? [28] I begin with a consideration of whether the note and the evidence pertaining to it could have been adduced at trial with the exercise of due diligence. The defence submits that due to Mr. Gauthier's limited education and alleged long-standing memory issues, it is reasonable to understand how he could forget about the note. I do not agree. Putting aside the questionable authenticity of the note, there is nothing to suggest that Mr. Gauthier's limited education impacts on his memory, nor to suggest that it impacted on his ability to appreciate the significance of the note. He admitted the note was crucial to his defence. The evidence of Rick Gauthier contradicts Mr. Gauthier's own evidence about his memory issues. If indeed the note existed before the trial (which is questionable), it would have been readily apparent that it was an important document to bring to Mr. Price's attention. As stated in Kowall, "[t]his was not a case where some minor fact unexpectedly took on overwhelming importance in the trial judge's reasons": at para. 40. Accepting, for the purposes of this application, that the note did exist prior to trial, I find that the note could have been obtained with the exercise of due diligence, even considering that, as set out in Palmer, this principle should not be applied as strictly in criminal cases, and that, as set out in Bajwa, because I am the original trier of fact, a "lower threshold in regard to the due diligence may be indicated": at para. 29. As stated in Drysdale, due diligence is only one factor to be considered; as I will discuss further below, the lack of due diligence is not the only hurdle this evidence fails to meet in this case. [29] With respect to the proposed evidence of Cody Bourdon, he testified that Mr. Price advised him he was not required for trial, so he did not appear as a witness. There is nothing before me to suggest that Mr. Price did not turn his mind to the potential evidence Mr. Bourdon might have had to offer at trial. Importantly, it was apparent from the cross-examination of Mr. Bourdon on this application that he had no independent memory of when any discussions with R.G. with respect to Mr. Gauthier's HIV status may have taken place. I note that Michael Gauthier was not challenged on the statement in his affidavit that he attended a meeting with his father at Mr. Price's office and heard his father mention Ms. Graham and Cody Bourdon to Mr. Price. However, as I stated earlier, Michael's affidavit evidence does not align with his evidence at trial, where he stated that he did not recall details from the time period between 2016 and 2017. [30] There is some basis to find that Ms. Graham had been identified as a possible witness before the trial. As noted above, her evidence on cross-examination was that she spoke to Mr. Gauthier at some point, and he said that his lawyer would contact her. However, her evidence with respect to the timeline of the events she described was somewhat confused. Again, Michael Gauthier was not challenged on the statement in his affidavit that he heard his father mention Ms. Graham to Mr. Price. However, again, I note that Michael's affidavit evidence does not align with his evidence at trial that he did not recall details from the period between 2016 and 2017. Despite the inconsistency in Michael's evidence, and Ms. Graham's confused timeline with respect to when she spoke to Mr. Gauthier about the charges against him, I accept that her evidence (albeit not the email appended to her affidavit dated June 2020) existed in some form, and could have been obtained before trial if due diligence had been exercised. Is the evidence relevant in the sense that it bears upon a decisive or potentially decisive issue at trial? [31] In my Trial Reasons, I found as facts that by August 2016, Mr. Gauthier and R.G. were in a sexual relationship and were initially using condoms; that R.G. confronted Mr. Gauthier about his HIV status after her friend M.A. told her that Mr. Gauthier had HIV; and that after this critical conversation, they decided to stop using condoms: at paras. 10-11. At trial, there was a considerable body of evidence from Mr. Gauthier regarding the conversation he had with R.G. about his HIV status. He testified that he became sexually active with R.G. sometime after Halloween when she moved in with him. Yet, in his affidavit on this application, he states he began his sexual relationship with R.G. in August 2016. It appears Mr. Gauthier has altered his version of events to align more closely with the proposed evidence regarding events in August 2016, as well as with my findings of fact in the Trial Reasons. In any event, given my findings at trial on the timing of that critical discussion between R.G. and Mr. Gauthier being in August 2016, and with respect to their sexual relationship having commenced prior to this critical discussion, I am not satisfied that this document dated October 2016, putting aside its questionable authenticity, is relevant to the central issue regarding what Mr. Gauthier revealed to R.G. with respect to his positive HIV status prior to engaging in sexual intercourse with her. Beyond that, at trial, I was not satisfied that Mr. Gauthier's viral loads were ever, during the relevant period, at a level other than one which posed a realistic possibility of transmission of HIV: Trial Decision at para. 87. Thus, even during the period at the start of Mr. Gauthier's sexual relationship with R.G. before this critical conversation took place, during which I found that they were using condom protection during sexual intercourse, the realistic possibility of transmission of HIV was not negated, and so R.G.'s consent to sexual intercourse was vitiated by the accused's non-disclosure of his HIV-positive status: Trial Decision at paras. 87, 94-97; see R. v. Mabior, 2012 SCC 47 at para. 94. [32] The defence submits Ms. Graham and Mr. Bourdon's proposed testimony is further evidence that R.G. was aware of Mr. Gauthier's HIV status. They submit Ms. Graham and Mr. Bourdon's evidence, considered together with that of Rick and Michael Gauthier, would serve to detract from R.G.'s credibility. I do not agree. It was clear from the evidence at trial that R.G. had been told by her friend M.A. that Mr. Gauthier had HIV. Indeed, that was precisely the reason she confronted him about it by August 2016. The central issue is not what other people told R.G. about Mr. Gauthier's HIV status, but rather what Mr. Gauthier told R.G. with respect to his HIV status prior to them engaging in sexual intercourse. I have found as a fact that Mr. Gauthier's HIV status was raised by R.G., some time after they began their sexual relationship, at which point they had the critical conversation during which he told her she need not be worried about contracting HIV from him. At that point, they had already been engaged in sexual intercourse. What others may have told R.G. is not probative of this central issue. Is the evidence credible in the sense that it is reasonably capable of belief? [33] In assessing whether the evidence is credible in the sense that it is reasonably capable of belief, I have considered it in light of the evidence at trial and the findings of fact that I made at trial. [34] As discussed earlier in these reasons, both Mr. Gauthier and Rick Gauthier provided rambling testimony during the hearing of this application that was both vague and evasive. For the reasons discussed above, I find that the evidence of both Mr. Gauthier and Rick pertaining to the creation of the note and the reasons for the late discovery and production of the note is incredible. In my view, their evidence is not reasonably capable of belief. While the authenticity of the note itself is questionable, I need not make that determination on this application. [35] With respect to Ms. Graham, I understand her proposed evidence is what she set out in her June 5, 2020 email attached to her affidavit. With respect to Mr. Bourdon, I understand his proposed evidence to be essentially what is set out in his affidavit filed on this application. Subject to the frailties in their evidence I have identified above, there may be a basis to accept their evidence about their discussions with R.G. regarding Mr. Gauthier's HIV status, and it may be reasonably capable of belief. Could the evidence reasonably, if believed, when taken with the other evidence adduced at trial, be expected to have affected the result? [36] It is important to consider that the central issue at trial was whether Mr. Gauthier advised R.G. of his HIV-positive status prior to engaging in sexual intercourse with her. I found as a fact at trial that he did not. None of the note, the fresh evidence from Mr. Gauthier, Rick, and Michael, or the evidence of the two additional witnesses could reasonably, if believed, be expected to have affected the result, because I found as a fact at trial that Mr. Gauthier did not disclose to R.G. his HIV-positive status prior to first engaging in sexual intercourse with her at a time when his viral load was at a level that posed a realistic possibility of transmission. Additionally, even after they had commenced their sexual relationship, when confronted by R.G. about his HIV status in August 2016, I found that Mr. Gauthier denied having HIV, stating he had an immune disorder which she could not contract, and that after this critical conversation, they agreed to no longer use condoms. The proposed evidence, if believed, when considered with the other evidence adduced at trial, simply cannot reasonably be expected to have affected the result at trial. Conclusion [37] I am not satisfied that there are exceptional circumstances to justify my exercise of discretion to reopen the defence case. Therefore, the defence application seeking to reopen the defence case and seeking a mistrial is dismissed. "Devlin J."