R. v. Sherman
The Court dismissed the appeal because the trial judge reasonably found, based on acceptance of the complainant's evidence and the appellant's cross-examination admissions, that the appellant knew he had Herpes II and nonetheless engaged in conduct amounting to a marked and substantial departure from reasonable...
Source-derived case information.
- Citation
- 2010 ONCA 462
- Parties
- Respondent: Her Majesty the Queen; Appellant: John Sherman
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 22 June 2010
- Procedural Posture
- Criminal / Appeal From Convictions
- Outcome
- Appeal dismissed; convictions and 12-month custodial sentence upheld.
- Legal Topics
- Non Disclosure of Sexually Transmitted Infection, Knowledge and Mens Rea, Evidence and Corroboration, Conditional Sentence Appropriateness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
John Sherman
Appellant
Procedural Posture
Criminal / Appeal From Convictions
Legal Issues
- 1 Whether the appellant knew he had Herpes II when he engaged in unprotected sex
- 2 Whether the appellant's conduct constituted criminal assault given his knowledge
- 3 Whether the trial judge erred in limiting findings of injury to corroborated photographic evidence
Ratio Decidendi
The Court dismissed the appeal because the trial judge reasonably found, based on acceptance of the complainant's evidence and the appellant's cross-examination admissions, that the appellant knew he had Herpes II and nonetheless engaged in conduct amounting to a marked and substantial departure from reasonable behaviour, that the trial judge properly confined assault findings to corroborated injuries, and that a conditional sentence was inappropriate given the appellant's prior probation and the seriousness of the offences.
Court Disposition
Appeal dismissed; convictions and 12-month custodial sentence upheld.
Orders
- Appeal dismissed
- Convictions affirmed
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Sherman Collection Decisions of the Court of Appeal Date 2010-06-22 Neutral citation 2010 ONCA 462 Docket numbers C50323 Judges Doherty, David H.; Cronk, Eleanore Ann; Watt, David Subject Criminal Decision Content CITATION: R. v. Sherman, 2010 ONCA 462 DATE: 20100621 DOCKET: C50323 COURT OF APPEAL FOR ONTARIO Doherty, Cronk and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and John Sherman Appellant Damien R. Frost, for the appellant Andreea Baiasu, for the respondent Heard: June 18, 2010 On appeal from the convictions entered by Justice Marietta L.D. Roberts of the Ontario Court of Justice dated February 27, 2009. APPEAL BOOK ENDORSEMENT [1] We are satisfied that the trial judge found that the appellant knew that he had Herpes II when he repeatedly had unprotected sex with the complainant. In doing so, the appellant acted in a manner that showed a marked and substantial departure from the way in which a reasonable person would have conducted himself. [2] The trial judge’s finding flows from her implicit acceptance of the complainant’s evidence that the appellant admitted that he knew he was infected and did not tell her, and from statements made by the appellant in his cross-examination which described conduct by him that was consistent only with someone who was aware that he was infected and chose to disregard that fact in conducting his relationship with the complainant. [3] The reasons for conviction on the assault charge do not reveal error. The trial judge limited her findings as to the nature of the assault to the injuries that were corroborated by the photographic evidence. This was a prudent and proper approach to the evidence. [4] The appellant received a total sentence of 12 months. Counsel submits that a conditional sentence should have been imposed. The trial judge considered the appropriateness of a conditional sentence. She found it to be inappropriate and gave reasons for that conclusion, including the fact that the appellant was on probation for domestic assault when he committed these offences. We see no reversible error in the trial judge’s analysis. [5] The appeal is dismissed.