A Toronto HIV-positive woman has successfully appealed a conviction for assault after the Ontario Court of Appeal found that, among other problems, she may have been denied antiretroviral drugs while she was in custody.
“Given the unusual manner in which this case unfolded in the court below, we cannot be satisfied a miscarriage of justice has not occurred,” wrote the three-judge panel. “It is therefore in the interests of justice that this appeal be allowed.”
The woman was convicted in 2012 of theft and assault causing bodily harm after she pleaded guilty to biting a Walmart security guard. Initially, she had been charged with aggravated assault, a charge often used to convict people for HIV non-disclosure.
The Crown initially alleged that the woman had bitten the security guard during an altercation and caused him significant bleeding. However, during a break in the court appearance, prosecutors contacted the alleged victim, who stated that the bite did not in fact cause any bleeding and that a doctor had told him the chance of HIV transmission was .001 percent.
The woman was then allowed to plead guilty to the lesser charge of assault causing bodily harm.
The woman has already served her sentence, but appealed to have her conviction overturned for a number of reasons. She claimed that once she had been placed in custody, she was denied access to antiretroviral therapy for 78 days, despite a judge’s order that she be provided with her medication.
“Defence counsel indicated the appellant had been sick while in jail and was concerned about becoming sick again,” wrote the judges. “On the record before us, it appears that the appellant wished to plead guilty on that day so that she could be released from jail.”
The court has set aside her conviction and ordered a new trial take place.
“As the appellant has served her sentence, the Crown may wish to consider whether this is an appropriate case for re-prosecution,” reads the ruling.
The judges also requested that the Crown look into the question of whether the woman was in fact denied her antiretroviral medication and why that would have taken place.
Daily Xtra does not name individuals involved in criminal cases related to their HIV-status.