High court eases law for HIV carriers

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PHIL HOSSACK / WINNIPEG FREE PRESS ARCHIVES Clato Mabior had sex with nine different women without telling them he was HIV positive.

OTTAWA -- The Supreme Court of Canada has absolved HIV carriers of the legal obligation to inform sex partners about their condition as long as they have a low level of the virus and wear a condom.

In a major 9-0 ruling Friday, the high court specified those two key conditions, clarifying the rules on whether it is a crime for people with extremely low levels of HIV to withhold their condition from their sex partners.

The court said it was reflecting the medical advances in treating the virus that causes AIDS since it first ruled on the issue in 1998 and left open the possibility of adapting to future changes in medicinal science.

The Supreme Court ruled on two separate cases, from Manitoba and Quebec, updating its landmark 1998 ruling on the subject.

The court ruled 14 years ago people with HIV must inform their sex partners of their condition or face a charge of aggravated sexual assault, which carries a maximum life sentence.

Now, that duty to disclose has been removed as a long as the HIV carrier has a "low load" of the virus and wears a condom. "On the evidence before us, a realistic possibility of transmission is negated by evidence that the accused's viral load was low at the time of intercourse and that condom protection was used," Chief Justice Beverley McLachlin wrote on behalf of the court.

"However, the general proposition that a low viral load combined with condom use negates a realistic possibility of transmission of HIV does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in the present case are at play."

The ruling was a partial victory for HIV/AIDS activists, who have argued the 1998 ruling sowed confusion and was applied unevenly. They wanted the decision struck down, but argued that, in the alternative, the court should at least refine that ruling to reflect new medical advances.

Friday's decision still wasn't enough for a coalition of groups, which said the court's ruling would undermine public health efforts and stigmatize people living with the illness and amounted to "a cold endorsement of AIDS-phobia."

"They don't need the constant threat of criminal accusations and possible imprisonment hanging over their heads," said a statement from the Canadian HIV/AIDS Legal Network. "Similarly, people not living with HIV need to be empowered to accept responsibility for their own health and not proceed under a false sense of security that the criminal law will protect them from infection."

The Supreme Court squarely addressed -- and firmly rejected -- that argument. "The only 'evidence' was studies presented by interveners suggesting that criminalization 'probably' acts as a deterrent to HIV testing," McLachlin wrote.

"The conclusions in these studies are tentative and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain."

The Supreme Court rejected the argument there should be a blanket law requiring people with HIV to disclose their condition under every circumstance. Prosecutors from both provinces argued HIV carriers have a duty to inform their partners regardless of the risk.

The court did not set an actual level for an acceptably low viral load, but offered a description, based on the evidence of the case.

"As noted by the court of appeal, the transmissibility of HIV is proportional to the viral load, i.e. the quantity of HIV copies in the blood," the decision said. "The viral load of an untreated HIV patient ranges from 10,000 copies to a few million copies per millilitre.

"When a patient undergoes antiretroviral treatment, the viral load shrinks rapidly to less than 1,500 copies per millilitre (low viral load), and can even be brought down to less than 50 copies per millilitre (undetectable viral load) over a longer period of time. This appears to be scientifically accepted at this point, on the evidence in this case."

The court was considering two cases, one of which involved Clato Mabior of Winnipeg, who was diagnosed with HIV in January 2004. He had sex with nine different women between February 2004 and December 2005 without telling them he was HIV positive.

None of the women contracted the disease. After Mabior was partly successful before Manitoba's Appeal Court, the Supreme Court was left to rule on four remaining convictions of aggravated sexual assault.

He was found to have low viral load with three of the complainants but did not use a condom. Those convictions were upheld.

But with one other woman, the justices were satisfied he had used a condom and because he met the second factor -- a low viral load -- his conviction on that count was set aside.

For Mabior, the ruling is academic -- he was deported to South Sudan in February.

In the second case, involving a Quebec soccer mom, the Supreme Court affirmed an earlier Appeal Court ruling that struck down her conviction for aggravated assault and sexual assault.

-- The Canadian Press

Republished from the Winnipeg Free Press print edition October 6, 2012 A19