Top court revises HIV disclosure law
Reinterprets definition of consensual sex
OTTAWA Tim McCaskell has lived with HIV for 30 years.
The HIV activist from Toronto uses condoms and his levels of the virus are undetectable.
But as of Friday, failing to use protection or having a spike in viral load could land him in jail after the country’s top court reinterpreted Canada’s laws around consensual sex.
In a unanimous decision on two HIV-related cases, one from Winnipeg, the other from Montreal, the Supreme Court of Canada ruled that someone living with the virus does not have to disclose their status to a sexual partner if they use a condom and have low viral loads. Should those conditions not be met, HIV-positive Canadians could still be charged with sexual assault.
The landmark ruling revised a 1998 Supreme Court decision that first imposed the disclosure law, suggesting proper condom use made the risk of transmission nil.
“It seems to have slid back from the position in 1998, even though the science has been moving the other way,” McCaskell said of Friday’s ruling.
“The standards are being set at a level that far surpasses the standards of risk that normal people deal with every day of their lives.”
In making the ruling Friday, the court chose not to eliminate the disclosure requirements that HIV legal activists have requested, while trying to balance broader public health concerns about the transmission of the virus. The unanimous ruling said that so long as there remained a “realistic possibility of transmission of HIV” through unprotected sex, HIV poses a “significant risk of serious bodily harm” under the law and requires disclosure.
Without disclosure, the law essentially negates any consensual sex and opens up the HIV individual to charges of aggravated assault and sexual assault.
“They have done their utmost to craft a decision that takes into account the various sides,” said Carissima Mathen, a criminal law expert from the University of Ottawa. “I admire what they have done here even if I, as a scholar, disagree with the continued focus on risk of transmission.
While there is no cure for HIV, advances in modern medicine have made it manageable to live with the virus. Until the risk of transmission is zero — and some evidence suggests that is a possibility in cases where viral levels are undetectable — there remains “significant risk of serious bodily harm” under the law, the court said. For Canadians such as McCaskell, the harm test has gone from posing a significant risk to a realistic possibility of transmission.
Legal experts said the court has made the law tighter and continued to criminalize Canadians with HIV.
“They say you’re going to be criminalized if you don’t disclose, if there’s any realistic possibility you have transmitted the virus, no matter how low,” said Isabel Grant, an expert on HIV disclosure law from the University of British Columbia. “They pretty much went as far as they could have gone in the direction of criminalization.”
Grant expects to see more HIV individuals charged under the new interpretation of the law. Since the 1998 Supreme Court ruling, more than 130 have been charged criminally under the HIV disclosure law.
In setting the new precedent Friday, the court decided, “condom use is not fail-safe,” nor is anti-retroviral therapy “a safesex strategy.”
That may change in the future, the court wrote, should science be able to render HIV non-communicable, or if modern medicine finds a cure for the disease.
“However, on the evidence before us, the ultimate percentage risk of transmission resulting from the combined effect of condom use and low viral load is clearly extremely low — so low that the risk is reduced to a speculative possibility rather than a realistic possibility,” Chief Justice Beverley McLachlin wrote for the court.
The court did not set a definition for a low viral load, but pointed out that the viral load of an untreated HIV patient can be as high as a few million “copies” of the virus per millilitre of blood. A patient on anti-retroviral treatments can shrink levels of the virus to less than 50 copies per millilitre.
“Why should people who do use condoms and protect their partners… why should they be criminalized if they can’t prove a (low) viral load?” said Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network, one of the interveners in the case. “It’s fine to say the court isn’t targeting these people, but that’s what the law is.”
The ruling also could set a double standard between the sexes. HIV-positive women will have to ensure they use protection, which may sometimes require them to disclose their status to their partner. In some cases, women aren’t in a position to safely insist on condom use.
“It’s a real double standard for the way this ruling is going to affect women and men,” McCaskell said. “This is not going to do anything for women with HIV. In fact, it’s going to probably increase their anxiety because it’s going to put an extra standard on them.”
Interveners in the case argued the law was a public health issue, deterring people from seeking HIV tests, treatment or disclosure out of fear of future prosecution.
In making the ruling, the court also upheld an appeal court decision to acquit a Montreal woman of aggravated assault and sexual assault, and reinstated three convictions against former Winnipeg resident Clato Lual Mabior.
Mabior was deported to South Sudan in February.
In 2008, Mabior was convicted for failing to disclose his HIV-positive status to nine women he had sex with in Winnipeg, including a 12-year-old girl. He was originally convicted on six counts of aggravated sexual assault and sentenced to 14 years in prison.
An appeal court overturned four of those convictions, arguing that using a condom or having a low viral load negated any risk of harm, meaning he didn’t have to disclose his status.
In a Quebec case, a woman only identified as D.C. in court documents was convicted of aggravated assault for failing to disclose her HIV status to her former spouse. The Quebec Court of Appeal overturned her conviction, saying that her viral load was undetectable and didn’t pose a significant risk.