SCOC ponders law on disclosure of HIV/AIDS to sex partners

By Linda Nguyen, Postmedia News February 7, 2012

For the first time in 14 years, the Supreme Court of Canada on Wednesday will significantly review legislation surrounding the human immunodeficiency virus.
Photograph by: Dave Chan, for National Post

OTTAWA — Canada's highest court will hear two landmark cases Wednesday on whether someone living with HIV should be held criminally liable if they do not disclose their condition to a sex partner, even when the risk of transmission is low.

It will be the first time in 14 years that the Supreme Court of Canada will significantly review legislation surrounding the human immunodeficiency virus.

For many legal and health-care advocates, an updated ruling from the country's top court on non-disclosure laws has been long overdue.

"The criminal law so far has been used to single out those with HIV," said Richard Elliott, the executive director of the Toronto-based Canadian HIV/AIDS Legal Network. "And there have been inconsistencies between how these cases have been dealt with by the court."

In Canada, an estimated 75,000 people live with HIV, with 3,300 people infected each year.

HIV is spread through bodily fluids including blood, semen and breast milk. There is no cure for the virus, but medical advancements have made it manageable, allowing those who have been diagnosed to live relatively long and largely healthy lives if they regularly take current anti-viral medication.

Since 1998 when the Supreme Court ruled in R v. Cuerrier, more than 130 people with HIV have faced criminal charges across the country. A handful of others have also been charged for not disclosing other sexually transmitted diseases, including herpes and hepatitis B and C.

In that decision, the court found that someone who does not disclose an STD, including HIV, puts their partner in "significant risk of serious bodily harm" and as a result, could face assault, aggravated assault or sexual assault charges.

The ruling indicated that even mere exposure to a viral infection is a crime under the law.

This should not be the case now, argues Elliott.

"In most cases, we're talking about very, very small risk of exposure that is not generally appreciated by many judges or by many juries or by the public at large," he said.

"There is a sense of exaggerated risk and you want to put that into perspective. It's fear, misinformation and stigma that is driving the application of the law."

The days of a positive diagnosis resulting in a "death sentence" for HIV patients is also no longer accurate, according to the HIV/Legal Network, which is acting as one of nearly a dozen interveners in the high-profile cases.

Readily available treatment makes it possible for someone diagnosed now to keep a low viral count and reduce the risk of spreading the virus.

In reality, the majority of those newly diagnosed are more likely to die of a disease other than the HIV or AIDS, added Elliott.

The group still believes those who wilfully and maliciously infect others should be criminally prosecuted, but says current laws have been misinterpreted by the courts as a way to penalize those who have done little to no harm.

The two cases central to this review originate from Manitoba and Quebec.

In the first, Clato Mabior, a man from Winnipeg, was convicted of six counts of aggravated sexual assault for not disclosing his HIV status to multiple partners.

Four of the convictions were eventually overturned by the Manitoba Court of Appeal after it was successfully argued that the women were not exposed to a "significant risk" of contracting the virus because Mabior was on effective antiviral therapy and had used condoms in some of the instances.

None of his sexual partners were infected.

But in its appeal, the province argued that Mabior's convictions should be upheld because he still exposed the women to possible infection.

"While people are often now able to live longer after infection, the physical and psychological impact of HIV infection remains overwhelming. At best, it is still a life sentence. At worst, it is a death sentence," according to a factum by the Manitoba Crown.

"The choice whether to assume this risk must, it is respectfully submitted, lie with the person assuming the risk, not the person imposing it."

In the second case, a woman identified as D.C. who was found guilty of aggravated assault and sexual assault had her convictions overturned by the Quebec Court of Appeal after it ruled that the possible risks of transmission were minimal.

HIV/AIDS activist Tim McCaskell says the laws have made those living with HIV not disclose their status, or even get diagnosed, over fear that they will be "outed" and dragged through the courts, he said.

Others who do seek help also fear that their health information could be easily subpoenaed for future prosecutions, says McCaskell, who has been living with HIV for nearly 30 years.

"It's a really slippery slope," said the retiree, 61. "This is not just something that should be a concern to people with HIV, but anyone concerned about the confidentially of their medical records."

Edwin Bernard, an author who has written two books on HIV-related legislation, says Canada is seen as one of the world leaders in non-disclosure prosecutions.

"It's ridiculous that we're using the criminal law to deal with infections that are primarily public health issues," he said in an interview from Germany.

For instance, in England, someone living with HIV can only be convicted if transmission actually occurs, says Bernard, who was diagnosed with the virus in 1998.

Last year, a court in Hamilton, Ont., declared Johnson Aziga a dangerous offender after he was found guilty of two counts of first-degree murder and multiple counts of aggravated assault. The HIV-positive man was the first person in Canada to be found guilty of murder for wilfully spreading the HIV-virus to a number of women, including two who later died of AIDS-related cancers.

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