BY MARCUS MCCANN – Sex and sexuality are once again on the docket at the Supreme Court of Canada today. The court is hearing appeals in two cases where partners did not disclose they were HIV-positive before having sex.
In neither case did the negative partners become HIV-positive. The appeals – in cases known as Mabior and R v DC – ask the court to consider whether the criminal law should intervene when a condom was used, or where the number of copies of the virus in the poz partner was so low that transmission was extremely unlikely to occur.
Five things to watch today:
1) What is the mood of the court?
The format is extremely compressed. The two cases will be heard together. Intervenors will have between 10 and 20 minutes each to make presentations. However, since the Supreme Court justices are free to ask follow-up questions, it's not clear how long the hearing will last, although it will almost certainly finish in a single day.
On the government side, lawyers from the provinces of Manitoba, Quebec and Alberta are expected to attend. (The Ontario government won the right to intervene but withdrew without explanation in December.) How the judges treat these lawyers could set the tone for the day.
2) How will HIV groups respond?
A coalition of HIV/AIDS groups will make a single, brief presentation. That group includes the Canadian HIV/AIDS Legal Network, the HIV & AIDS Legal Clinic Ontario, Positive Living Society of British Columbia, Canadian AIDS Society, Toronto People with AIDS Foundation, Black Coalition for AIDS Prevention, Canadian Aboriginal AIDS Network and the Coalition des organismes communautaires Québécois de lutte contre le sida.
That presentation is likely to be measured, in part because consensus on the topic among so many players is difficult to reach. The main thrust of their written submission is centred on preserving hard-won defence strategies against such prosecutions, especially the relevance of condom use and viral load. Judges – if any – are likely to tread carefully in framing their question.
3) What will the civil libertarians say?
The Criminal Lawyers' Association of Ontario and the British Columbia Civil Liberties Association (BCCLA) are also expected to address the court. The BCCLA's written arguments go several steps further than the brief presented by the coalition of AIDS service organizations. The BCCLA presentation is wild card, both in what its lawyers choose to emphasize and how it's received.
4) Will the court focus on the accused?
This hearing has the potential to reshape how HIV-positive people are treated in the eyes of the law. Yet, it's also the appeal of criminal cases affecting actual people. How much attention is paid to the two accused from the unrelated cases – a male Sudanese refugee living in Winnipeg and an HIV-positive woman from Quebec – is likely to hint at how widely or narrowly this appeal is being considered.
5) How will Stephen Harper's new appointees react to this case?
Four of the nine judges on the Supreme Court of Canada are now Harper appointees. The two newest, Andromache Karakatsanis and Michael Moldaver, have been sitting on the bench for only a few months. Supreme Court watchers of all political stripes will be watching today's hearing with one eye firmly trained on this pair of junior judges.