Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, ss. 752.1 [as am.], 753(1)(a)( i), ( ii), (4) [as am.],
(4.1) [as am.], 759(3)(b)
APPEAL by the accused from a designation as a dangerous
offender and from the indeterminate sentence imposed by Hockin
J. of the Superior Court of Justice on February 24, 2015.
Andrew Furgiuele and Angela Ruffo, for appellant.
Gregory J. Tweney, for respondent.
The judgment of the court was delivered by
ROULEAU J.A.: —
 The appellant appeals from his designation as a dangerous
offender and from his sentence of an indeterminate period of
incarceration. His designation and sentence followed his guilty
plea to two counts of aggravated sexual assault after endangering
the lives of two women by having unprotected sex with them
without first disclosing his HIV-positive status. Both women contracted the disease as a result of these offences.
 In his factum, the appellant sets out three grounds of
appeal. In oral submissions, however, we were advised that only
two of these grounds were being pursued: the failure of the
sentencing judge to conduct the necessary prospective risk assessment at the designation stage, as required by R. v. Boutilier,
 2 S.C.R. 936,  S.C.J. No. 64, 2017 SCC 64, and the
sentencing judge’s failure to consider the fact that the appellant
was Indigenous and the relevant principles from R. v. Gladue,
 1 S.C.R. 688,  S.C.J. No. 19.
 The Crown concedes that the two errors were committed,
but maintains that neither had an impact on either the designation
of the appellant as a dangerous offender or the indeterminate
sentence imposed on him. In the Crown’s submission, this is one of
the “rarest of circumstances” where, as explained in R. v. Johnson,
 2 S.C.R. 357,  S.C.J. No. 45, 2003 SCC 46, at
para. 49, the appeal can be dismissed pursuant to s. 759(3)(b) of
the Criminal Code, R.S.C. 1985, c. C-46, because “there is no
reasonable possibility that the verdict would have been any
different had the error of law not been made”: see, also, R. v. Sipos,
 2 S.C.R. 423,  S.C.J. No. 47, 2014 SCC 47, at
paras. 24, 48.
 For the reasons that follow, I would dismiss the appeal.