The Supreme Court of Canada announced May 5 that it will hear the case of an HIV-positive man who failed to disclose his status before having sex. The case, known as Mabior, will be the third such case to go to the Supreme Court, and the first in almost a decade.

Another case, R v DC in Quebec, is winding its way through the appeal process and could end up before the Supreme Court soon.

The court does not give reasons for agreeing to hear a case, but HIV activists believe that Mabior and DC will be a test of two defences against HIV-related charges: condom use and low viral load.

In interviews with Xtra in February, lawyer Glenn Betteridge and Canadian HIV/AIDS Legal Network's Cécile Kazatchkine described Supreme Court challenges as one of three prongs they're using to minimize the harm caused by unchecked prosecutions of poz folks for nondisclosure.

In the case headed to the Supremes, a Winnipeg man was sentenced to 14 years in jail for six counts of aggravated sexual assault. Four of those convictions were overturned on appeal. Because he is a new immigrant, when he is released, he will likely be deported.

The Supreme Court first ruled that knowingly exposing a sexual partner to HIV is a prosecutable crime in 1998's Cuerrier decision. It reinforced that decision in 2003's R v Williams.

But developments in treatment and advances in the science of HIV mean that new information will be presented to the court. Research released since Williams shows that those who are being treated and have an undetectable viral load pose little or no risk of infecting others, even when they have sex without a condom.

 

 


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