Rights & Liberties
2 min

Judge reexamines sentence in pivotal HIV-nondisclosure case

An HIV-positive man sentenced to 14 years in prison after being convicted two years ago for not disclosing his serostatus to sexual partners says he has served enough time in jail.

The case, known as Mabior, could go all the way to the Supreme Court of Canada. At its heart is a dispute about whether the accused put his partners at serious risk. Last October, the accused successfully reduced six
aggravated sexual assault convictions to two, based on condom use and his low viral load.

Shortly afterwards, the Manitoba Court of Appeal ordered a
new sentencing hearing on the charges for which he has been convicted.
He will return to court Dec 16.

At a Dec 1 hearing, Ian MacNair, the accused’s lawyer, motioned for his client’s immediate release. Crown Wendy Friesen argued he should serve two more years in prison.

Justice Joan McKelvey reserved judgment.

In her 62-page decision, Manitoba Court of Appeal Justice Freda Steel found the trial judge was wrong to conclude that everyone who had sexual relations with the accused was exposed to “significant risk.”

In the four overturned sex assault convictions, Steel referred to medical evidence that showed the risk of exposure was low when the accused wore a condom. The judge also cited evidence that the accused's antiretroviral therapy meant there was a “high probability” he wasn't infectious.

The decision also stated:

“In this case, the scientific evidence indicated that either the careful use of a condom or effective antiretroviral therapy, which reduced viral loads to an undetectable level, could potentially reduce the level of risk to below the legal test of 'significant risk,'

And:

“Although the accused knew that he was HIV-positive, and despite medical warnings to the contrary, he did not disclose that condition to the complainants, who, with one exception, would not have consented if they had known he was HIV-positive… I can well understand that those complainants feel, in their opinion, that the nature and quality of the sexual act was fundamentally changed by the lack of disclosure of the risk of disease.”

A phone call and email request for an interview to Ian MacNair has yet to be returned.

The accused immigrated to Canada from Sudan in 2000. He will be deported when he is released from prison, but he has publicly stated he no longer wants to live in Canada. It might be interesting to note he is the second Winnipeg-based Sudanese immigrant to be in the news for HIV nondisclosure this year.

Image cc Joe Gratz/Flickr
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