HIV-criminalization case headed back to court

A 30-year-old Ontario man received the news Jan 9 that he is to stand trial on four counts of attempted murder for having unprotected sex without disclosing his HIV-positive status.

Ian Carter, the lawyer of the accused, says he will appeal the decision.

At a preliminary hearing in July 2011, Ontario Court Justice David Wake had dropped the charges, arguing there was no reasonable evidence the accused had intent to kill when he allegedly had unprotected sex.

At the time, the court noted that medical advancements in HIV/AIDS treatment mean the disease is no longer inevitably fatal.

Ontario Superior Court Justice Albert Roy overturned that decision on Jan 9. A publication ban was issued at the July hearing on evidence relating to the case.

The accused will stand trial for more than 20 charges related to unprotected sexual contact with eight people, including aggravated assault, possession of child pornography and two counts of administering a noxious substance.

He is to appear for a pretrial motion on June 25 in the Superior Court, but Carter says his client has a tentative court date of March 9, and litigations are ongoing.

Cecile Kazatchkine, a policy analyst at the Canadian HIV/AIDS Legal Network, says the case is rare, noting that most cases involving nondisclosure result in an aggravated assault charge.

“In most cases there is no intent to kill,” she says, citing the 1998 Supreme Court Cuerrier decision, which set the precedent. It ruled that failing to inform sexual partners of positive HIV status, regardless whether infection occurs, is viewed as fraud and amounts to aggravated assault. “There is no need to prove intent in that circumstance,” Kazatchkine says.

In February the Supreme Court will hear two appeals involving HIV criminalization. In both cases the accused are convicted of aggravated sexual assault for engaging in unprotected sex without disclosing their HIV-positive status.

“It’s definitely a trend in Canada to prosecute people living with HIV for not disclosing,” Kazatchkine says. “There is a question of whether or not people with an undetectable viral load level should be considered a significant risk of transmission.”