The Supreme Court of Canada announced May 5 that it will
hear the case of an HIV-positive man who failed to disclose his status before
having sex. The case, known as Mabior, will be the third such case to go to the
Supreme Court, and the first in almost a decade.
Another case, R v DC in Quebec, is winding its way
through the appeal process and could end up before the Supreme Court soon.
The court does not give reasons for agreeing to hear a
case, but HIV activists believe that Mabior and DC will be a test of two
defences against HIV-related charges: condom use and low viral load.
In interviews with Xtra in February, lawyer Glenn
Betteridge and Canadian HIV/AIDS Legal Network’s Cécile Kazatchkine described
Supreme Court challenges as one of three prongs they’re using to minimize the
harm caused by unchecked prosecutions of poz folks for nondisclosure.
In the case headed to the Supremes, a Winnipeg man was
sentenced to 14 years in jail for six counts of aggravated sexual assault. Four
of those convictions were overturned on appeal. Because he is a new immigrant,
when he is released, he will likely be deported.
The Supreme Court first ruled that knowingly exposing a
sexual partner to HIV is a prosecutable crime in 1998’s Cuerrier decision. It
reinforced that decision in 2003’s R v Williams.
But developments in treatment and advances in the science
of HIV mean that new information will be presented to the court. Research
released since Williams shows that those who are being treated and have an
undetectable viral load pose little or no risk of infecting others, even when
they have sex without a condom.
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