Appeals from two men convicted of sexual assault because they did not disclose their HIV-positive status before having sex were delayed by the Ontario Court of Appeal June 25.
At the centre of the cases is whether condom use negates the legal obligation to inform sexual partners of your HIV status before having sex.
The legal test for conviction — which requires proof of “a significant risk of serious bodily harm” — is under review by the Supreme Court of Canada. That court is expected to specifically address condom use and criminal prosecutions when it releases its decision in Mabior later this year.
The two Ontario Court of Appeal cases are unrelated, but because they raise the same legal issues, they are being heard together. The names of the accused are public, but Xtra has so far declined to publish them. The names of the complainants are protected by a publication ban.
F was convicted on a number of charges, including sexual assault for nondisclosure even though he used a condom.
M was convicted of aggravated sexual assault, and the trial judge ruled that condom use was irrelevant.
Sexual assault carries a maximum penalty of 10 years in prison. The maximum sentence for aggravated sexual assault is life in prison. If the convictions stand, their names could be added to the sex offender registry permanently. Neither of the defendants are currently in jail.
The Canadian HIV/AIDS Legal Network and the HIV/AIDS Legal Clinic-Ontario intervened in the Ontario cases and presented a joint submission.
They argued that condom use reduces the risk of HIV transmission to 0.016 percent and therefore should be a complete bar to prosecution. They further argued that even when a condom is not used, in some cases the risk of transmission is too remote to constitute a “significant risk.”
The adjournment was a surprise to some HIV advocates. About 20 people packed into the court's viewing gallery wearing T-shirts with the words “HIV positive” written on them, expecting to hear the arguments of the appeal. Instead, the judges acknowledged them, saying that the issue was important to many but announced their decision to hold off on the hearing until the Supreme Court's decision in Mabior is released.