Two government lawyers got an earful from the Supreme Court of Canada Feb 8, as arguments got underway in Ottawa in two cases involving HIV nondisclosure.
Judges pressed lawyers representing the Quebec and Manitoba attorney generals’ offices over their apparent disregard for scientific evidence with respect to the evolution of HIV treatment and viral load over the last 15 years.
Chief Justice Beverley McLachlin also suggested that the test for criminal responsibility for nondisclosure, as it’s formulated, may be too vague to be useful.
“How is that person supposed to know if they are committing a criminal act? If the answer is, ‘They can’t know for sure,’ then surely the crime isn’t really a crime. It would violate one of the fundamental principles of criminal law,” McLachlin said.
“If you set the terms as broad as ‘You need to know what you’re getting yourself into,’ she added, “you’d be vitiating consent in thousands of consents every day . . . or night.”
The court is reviewing the rules set out in its 1998 Cuerrier decision, which required that HIV-positive people disclose their status to sexual partners if there is a “significant risk of serious bodily harm.”
The attorneys general argued that all risk of infection is a “significant risk” and that contracting HIV/AIDS is a “serious bodily harm.”
Elizabeth Thomson, a lawyer representing the attorney general of Manitoba, was interrupted by Justice Rosalie Abella within the first five minutes of the hearing. Increasingly pointed questions effectively derailed Thomson’s oral argument.
Judges openly worried that the attorney general’s position, if adopted, would result in an absolute liability offence. Justice Abella called Manitoba’s position one with “no nuance, no gradations.”
Justice Michael Moldaver said the justices were looking for a clear, intelligible test where HIV-positive people would not have to disclose in every circumstance. Moldaver twice referred to a trial decision in which a judge ruled that a poz person would not have a duty to disclose if he had both a low viral load and used a condom. Moldaver referred to risk of transmission in those circumstances as “nonexistent or virtually nonexistent.”
Chief Justice McLachlin suggested that in cases where the risk does not materialize — where no partner becomes HIV-positive — there may not be any crime at all.
The judges’ comments are in no way binding. Often, the written judgments vary significantly from what is said in court.
The cases, R v Mabior and R v DC, both involve HIV-nondisclosure where their partners did not become HIV-positive. Condom use and level of infectiousness — as measured by the number of copies of the virus in the bloodstream, referred to as viral load — were issues in both trials.
The identity of the victims in both cases are covered by a publication ban.
Amanda Sansregret, a legal aid lawyer from Manitoba who represents one of the two accused, gave a lively defence of her client. She argued that either condom use or low viral load ought to suffice as a defence. It’s a sentiment that echoes the submissions from AIDS service organizations made in advance of the hearing.
HIV-positive partners who use condoms or have low viral loads simply don’t pose a high risk to their partners, she said.
“People have been lying in order to secure sexual consent from time immemorial,” Sansregret said. “If you really want to protect yourself, you should use a condom . . . it strikes me as the safest approach.
“If you’re looking for a complete absence of risk, with all respect, abstinence is your answer.”
The court asked equally pointed questions of Sansregret and another defence lawyer, Christian Desrosiers.
Abella asked whether access to post-exposure prophylactics changes the math – noting that a partner of someone who doesn’t know his or her partner is HIV-positive will not know when it might be appropriate to use that kind of medication, thereby increasing his or her risk. She also asked about partners who may be especially vulnerable to HIV transmission, for instance if they have coinfections. She said a poz partner may know the risk he poses in regular circumstances but may not be aware of the extra vulnerability of his partner.
There was a single 10-minute presentation from a coalition of AIDS groups. Lead counsel Jonathan Shime described the current test as “an appropriate safeguard.”
“We don’t need to criminalize everyone in order to have a predictable” law of HIV, he says. “Use of a condom means there is . . . intention. There is no recklessness.”
The BC Civil Liberties Association and the Criminal Lawyers’ Association also presented briefs.
Aside from closing comments, Quebec Public Health had the last word. Lucie Joncas told the court that public health is not helped by the overuse of the criminal law in this area. She gave two reasons: firstly, that the bulk of new infections come from people who do not yet know that they are HIV-positive, and secondly, that consistent use of condoms — rather than relying on partners’ representations of their HIV status — is the best way to protect the health of Canadians.