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Motion to quash HIV trial denied

The case of an HIV-positive man charged with aggravated sexual assault for allegedly having unprotected sex without disclosing his positive status is still headed to trial, despite his lawyer’s attempt to have the case dropped.

Laywer Jason Gratl told the BC Supreme Court Jan 10 that he felt the original judge’s decision to send his client to trial was based on insufficient evidence.

“Our position is that the evidence is inadequate,” Gratl told Xtra West outside the courtroom.

Even if the evidence presented at his client’s preliminary hearing last September is to be believed, “it did not demonstrate a significant risk of bodily harm,” Gratl argues.

The accused was originally charged with two counts of aggravated sexual assault, but Crown counsel stayed the second count before the preliminary hearing began. All evidence presented at that hearing remains banned from publication by law.

According to Canada’s Criminal Code, aggravated sexual assault is any sexual assault that “wounds, maims, disfigures, or endangers the life of the complainant,” and can carry a maximum penalty of life imprisonment.

HIV-positive people can be charged with aggravated sexual assault if they fail to disclose their serostatus and have unprotected sex in such a way that there’s a significant risk of transmission.

Judge Jane Godfrey ruled last September that there was sufficient evidence in this case to warrant a trial. Last week, Justice Arne Silverman upheld Godfrey’s decision.

Gratl raised some important questions, Silverman ruled, but these are still questions best settled at trial.

The case could go to trial as early as this summer. But Gratl says he is considering appealing Silverman’s decision to proceed.