Danger­ous of­fender la­bel up­held for HIV-pos­i­tive man in sex as­sault case

The Standard (St. Catharines) - - Canada & World - PAOLA LORIGGIO

An On­tario judge made le­gal er­rors in des­ig­nat­ing a man who with­held his HIV sta­tus from women he had sex with as a danger­ous of­fender, but those mis­takes did not af­fect the out­come of the case, the prov­ince’s high­est court said in up­hold­ing the de­ci­sion Mon­day.

Daniel Gra­cie, 43, had a lengthy crim­i­nal record by the time he pleaded guilty to two counts of ag­gra­vated sex­ual as­sault in­volv­ing two Lon­don, Ont., women with whom he had un­pro­tected sex­ual ac­tiv­ity, in­fect­ing them with the HIV virus.

In a 2010 in­ci­dent, he sex­u­ally as­saulted a woman with whom he was staying while she was sleep­ing, ac­cord­ing to court doc­u­ments. She dis­cov­ered a year later that she had con­tracted HIV.

The sec­ond com­plainant was in an on-and-off re­la­tion­ship with Gra­cie and had un­pro­tected sex with him on mul­ti­ple oc­ca­sions while they were dat­ing in 2010 and 2011, af­ter he as­sured her he had no sex­u­ally trans­mit­ted dis­eases, doc­u­ments say. She also tested pos­i­tive for HIV later.

Gra­cie had been told by doc­tors and his pro­ba­tion officer about the risks of hav­ing un­pro­tected sex and his le­gal obli­ga­tion to dis­close his HIV sta­tus to any po­ten­tial part­ners, doc­u­ments say.

A judge deemed Gra­cie a danger­ous of­fender, a le­gal des­ig­na­tion re­served for those re­peat­edly con­victed of vi­o­lent or sex­ual crimes, and sen­tenced him to re­main be­hind bars in­def­i­nitely.

Gra­cie ap­pealed the danger­ous of­fender la­bel and the in­de­ter­mi­nate sen­tence, ar­gu­ing the judge didn’t prop­erly con­duct a prospec­tive risk as­sess­ment and failed to take into ac­count his Indige­nous background.

In a unan­i­mous de­ci­sion re­leased Mon­day, the Court of Ap­peal for On­tario said that while the judge didn’t con­duct the risk as­sess­ment un­til the penalty stage, rather than doing so be­fore declar­ing Gra­cie a danger­ous of­fender, “there is no rea­son­able pos­si­bil­ity that the ver­dict would have been any dif­fer­ent.”

The ev­i­dence over­whelm­ingly supported a find­ing that Gra­cie could not be con­trolled in the com­mu­nity, the ap­peal court said, not­ing as­sess­ments found him to pose a mod­er­ate to high risk of vi­o­lent or sex­ual re­cidi­vism.

Gra­cie was also di­ag­nosed with an­ti­so­cial personalit­y dis­or­der and “sig­nif­i­cant psy­cho­pathic traits,” which sug­gest he would be less re­spon­sive to treat­ment, the court said.

While pre­vi­ously be­hind bars, Gra­cie showed no signs of insight into his crimes or will­ing­ness to take part in cor­rec­tive programmin­g, it added.

“While there were signs of op­ti­mism be­cause of his con­duct at the El­gin Mid­dle­sex De­ten­tion Cen­tre, the sen­tenc­ing judge de­ter­mined that this ev­i­dence amounted only to a pos­si­bil­ity of even­tual con­trol in the com­mu­nity, not a rea­son­able ex­pec­ta­tion of such con­trol,” it wrote.

The ap­peal court fur­ther found that though the judge did not ref­er­ence a re­port meant to help take into ac­count Gra­cie’s Indige­nous background in his sen­tenc­ing, those fac­tors would also not have af­fected the out­come.

Gra­cie’s bi­o­log­i­cal mother was of Mi’kmaq heritage and a mem­ber of the Mill­brook First Na­tions in Nova Sco­tia, but he was adopted as an in­fant by a “lov­ing and sup­port­ive” non-Indige­nous fam­ily that moved to Toronto shortly af­ter­wards, the court said.

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