Law360 Canada ( August 9, 2018, 8:35 AM EDT) -- Appeal by the accused from conviction for first degree murder under s. 231(5)(b) of the Criminal Code. The appellant had sexual contact with the victim prior to her death and died violently in the appellant’s bed. The Crown’s theory was the appellant intentionally killed the victim while committing the offence of sexual assault. The appellant testified that the victim had criticized his sexual performance which caused him to lose control. He then grabbed a pair of scissors from his nightstand and killed the victim by stabbing her nine times. The appellant was HIV positive. The Crown therefore claimed that even if things happened as he testified, the complainant would not have consented to unprotected sex with the appellant had he disclosed that he was HIV positive. The Crown argued that any consent the victim gave for sex that night was therefore vitiated by fraud and that his killing of the victim would still be first degree murder. The appellant argued that murder could not be classified as first degree murder under s. 231(5)(b) unless the sexual assault predicate offence involved the physical domination of the victim and that a sexual assault arising from fraudulently obtained consent did not satisfy the physical domination requirement. The appellant also argued that the conduct and tenor of the cross-examination by the Crown in this case was so improper and prejudicial that it rendered the trial unfair and resulted in a miscarriage of justice....