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HIV-positive Ottawa man acquitted in nondisclosure case

Case originally went to trial in January but superior court justice declared mistrial

The Ottawa man who faced charges of aggravated sexual assault after being accused of not disclosing his HIV-positive status to a sexual partner was acquitted this week in an Ottawa court. Credit: Xtra file photo

The Ottawa man who faced charges of aggravated sexual assault after being accused of not disclosing his HIV-positive status to a sexual partner was acquitted this week in an Ottawa court.

It is Xtra’s policy not to name the accused in cases of this nature, and the identity of the 25-year-old complainant is subject to a publication ban.

The case initially went to trial in January, when Superior Court Justice Robert Maranger declared a mistrial because of unspecified issues with the jury. Defense counsel Ian Carter said at the time the accused would be satisfied with a ruling from Maranger, but Crown Prosecutor David Elhadad did not consent.

The case is a reminder that Canada’s treatment of HIV disclosure in the criminal courts is viewed by some as draconian. Just last month, dozens of Canadian scientific experts released a consensus statement that said, “A poor appreciation of the science related to HIV contributes to an overly broad use of the criminal law against individuals living with HIV in cases of HIV nondisclosure . . . We are concerned that actors in the criminal justice system have not always correctly interpreted the medical and scientific evidence regarding the possibility of HIV transmission, and may not have understood that HIV infection is a chronic manageable condition. This may lead to miscarriages of justice.”

According to research by the AIDS-Free World project, 96 HIV-related prosecutions had played out in courts across Canada as of April 2012. Only the United States had seen more such cases over the same period.

What is widely thought to be the world’s first HIV-related murder conviction was made in Canada: Uganda-born Johnson Aziga was convicted on two counts of first-degree murder in Hamilton, Ontario, in 2009 and in 2011 was declared a dangerous offender, meaning he will remain in prison indefinitely.

The precedent for that decision was set in 1998, in the case of Henry Cuerrier. The British Columbia man learned he was HIV-positive in 1992 and subsequently entered into sexual relationships with two women before disclosing his status. Neither had contracted the virus at the time of the first trial.

Cuerrier was acquitted on two counts of aggravated assault in a decision that was subsequently upheld by the BC Court of Appeal. The Supreme Court of Canada overturned both those decisions, however, ruling that Cuerrier’s nondisclosure was an act of fraud because it created a “serious risk of bodily harm.”

An article on the case that appeared in the University of Toronto Medical Journal argues that “criminalization carries with it significant public health consequences: the risk of deterring individuals from seeking HIV testing by inducing fear of incarceration, an adverse effect on patient-provider relationships, a risk of lulling society into a false sense of protection by criminal law, and the infringement of civil liberties.”

Despite the interventions of groups advocating for alternatives to criminal prosecution, the Supreme Court upheld two similar convictions (R v Mabior and R v DC) in 2012.

The Canadian HIV/AIDS Legal Network responded by calling both decisions “a cold endorsement of AIDS-phobia,” adding that the court “blatantly ignores solid science and opens the door to convictions for non-disclosure even where the risk of transmission is negligible, approaching zero.”