An HIV-positive man convicted of multiple counts of aggravated sexual assault last year had his convictions reduced from six to two by the Manitoba Court of Appeal last week.
In her 62-page decision, Justice Freda Steel found the trial judge was wrong to conclude 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:
“The law, with respect to aggravated sexual assault and the transmission of HIV, as developed by the Supreme Court of Canada in Cuerrier, attaches criminal liability to the failure to disclose one’s positive HIV status only when there is a ‘significant risk of serious bodily harm,’
“That determination will vary depending on the scientific and medical evidence adduced in each particular case. 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,’
“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.”
Cecile Kazatchkine, spokesperson for HIV/AIDS Legal Network, says this is a legal landmark for Canadian HIV-nondisclosure cases.
“The principal issue on the appeal was whether the trial judge erred in her application of the legal test of ‘significant risk of serious bodily harm’ (ie significant risk of HIV transmission) in the particular circumstances of the case. The trial judge considered that even when a condom is used there is a significant risk of HIV transmission for the purpose of the criminal law and reached the same conclusion for an undetectable viral load. [The trial judge said] the risk would only be sufficiently reduced when a person has both an undetectable viral load and uses a condom,” says Kazatchkine.
Kazatchkine points to the 1998 Supreme Court of Canada’s R v Cuerrier decision, which decided a poz person can be convicted of aggravated sexual assault for not disclosing his or her serostatus to sex partners before engaging in an activity representing a significant risk of HIV transmission.
“[Justice Steel] stated very clearly that the test set out in Cuerrier was not a ‘no risk’ test but required the presence of a significant risk. The Court further explained that ‘significant risk’ means something other than an ordinary risk. It means an important, serious, substantial risk. The Court of Appeal also stated that legal assessments of risk in this area should be consistent with the available medical studies and acknowledged the application of the legal test in Cuerrier must evolve to account appropriately for the development in the science of HIV treatment. As a result, the Court decided that the careful use of a condom or an undetectable viral load can reduce the level of risk below the threshold test of a significant risk,” says Kazatchkine.
While there is a fight to create consistent application of the law in nondisclosure cases, Kazatchkine says only lower Manitoba courts will be bound by this decision and it can be appealed to the Supreme Court. And while the court ruled condom use and undetectable viral load can be enough to reduce or exclude criminal liability, it does not provide certainty that use of a condom or having an undetectable viral load removes the requirement to disclose.
“The decision, limiting the scope of the criminal law to the very circumstances where the risk of HIV transmission is real, has great merit. It clearly rejects the argument that sex can never be consensual in the case of nondisclosure. The Court recognizes that this is not the law in Canada and that the criminal sanctions should be reserved for those deliberate, irresponsible or reckless individuals who do not respond to public health directives and who are truly blameworthy,” says Kazatchkine.
Jason Gratl, a BC defence lawyer, defended a poz man who failed to disclose his serostatus before having unprotected sex with his boyfriend and was found not guilty May 7. While each case has its differences, he says this Manitoba case seems consistent with his case in BC.
The accused in the Manitoba case immigrated to Canada from Sudan in 2000. Originally sentenced to 14 years, his sentence will be reduced and he will be deported upon release. He is the second Winnipeg-based Sudanese immigrant to be in the news for HIV nondisclosure this year.