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Top court to rule today on local HIV case

Medical advances prompted revisiting of 1998 decision

By: Mike Blanchfield

Posted: 10/5/2012 1:00 AM | Comments: 0

Clato Mabior: no 'significant risk' (PHIL HOSSACK / WINNIPEG FREE PRESS ARCHIVES) Photo Store

OTTAWA -- The Supreme Court of Canada is set to issue a major ruling Friday on whether it is a crime for people with extremely low levels of HIV to withhold that fact from their sex partners.

The Supreme Court will be ruling on two separate cases, from Manitoba and Quebec, essentially updating its landmark 1998 ruling on the subject -- one some critics argue is outdated because of medical advances since then in treating the virus that causes AIDS.

The court ruled 14 years ago that 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.

Interveners in the case have argued the 1998 ruling has sowed confusion and has been unevenly applied.

They say advances in HIV therapy have resulted in people living long lives with minuscule levels of the virus that are almost impossible to transmit.

Prosecutors from both provinces have argued HIV carriers have a duty to inform their partners regardless of the risk, so they can make an informed decision.

The British Columbia Civil Liberties Association, one of the interveners in the case, urged the high court to set aside its 1998 decision and remove the requirement of HIV carriers to seek consent before sex.

Alternatively, the group said, the court could at least refine its old ruling to reflect new medical advances.

"This refinement would recognize that condom use or an undetectable viral load significantly reduces the already minute risks of HIV transmission, be consistent with public-health objectives and promote certainty in the criminal law," the association says in its factum.

"The current, absolute duty to disclose, even to a stranger who asks no questions and chooses to engage in unprotected sex, undermines personal autonomy, discourages personal responsibility for sexual health and rests on an invariant view of sexual relationships. People sometimes choose to engage in inherently unsafe sex."

Crown prosecutors argued strongly that those carrying the virus owe a duty to disclose their conditions to their prospective partners.

"Certain acts are dangerous in and of themselves because they create the chance that someone could be hurt or killed," said the Manitoba government's submission.

"It does not matter that the chance of this occurring is small -- the law aims to stop people from taking that chance."

One of the cases involves 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.

Mabior was convicted of aggravated sexual assault in six of the nine cases and sentenced to 14 years in prison for failing to disclose his illness. He was acquitted in three of the cases because the judge was satisfied that his low level of HIV, plus the fact he wore a condom, negated his duty to tell those women about his condition.

Four of those convictions were overturned by the Manitoba Court of Appeal, which found not everyone who had sex with Mabior was exposed to "significant risk."

In the Quebec case, a woman with HIV, who cannot be identified, had sex with a man she met at her son's soccer game in 2000 without disclosing her illness. She had been taking anti-retroviral drugs after receiving her HIV diagnosis nine years earlier.

-- The Canadian Press

Republished from the Winnipeg Free Press print edition October 5, 2012 A17

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