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Friday, 5 October 2012

Canada: Supreme Court makes bad law worse (Update 5)

The Supreme Court of Canada (SCC) said today that the duty for an individual with HIV to disclose can be dispensed only when a condom is used and the individual also has a low viral load.



Update 5: Political reactions

Ipolitics.ca now has the first reactions from Canadian politicans to the Supreme Court ruling
In response to the ruling, NDP deputy leader and health critic Libby Davies said she believes the Supreme Court in its decision tried to respect both issues of public health and the rights of those living with HIV-AIDS. But she did have “some concern” about how far the decision goes.

“The issue of criminalization is sometimes very difficult,” she said. “It’s like a stigma that hangs over people and so that’s something that we want to avoid. So I want to look more carefully at the decision and I know that our – our critics involved with this file will also look at the decision more carefully.”
She added that prevention, education and support for those living with HIV and AIDS remain the most important things.

Liberal leader Bob Rae said he’s not in the habit of “judging the judges” but added “I don’t think that’s an unreasonable decision by the court at all.”

Update 4: CBC interview with Richard Elliott / Canadian HIV organisations react

"I think the court has come just shy of basically saying if you have HIV you’re a potential criminal," Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network, tells the CBC, helping the confused presenter understand that this ruling does not improve the situation for people living with HIV, nor those at risk.

   

He is also quoted extensively in this Globe and Mail news story
"It is a step backward for public health and for human rights," Mr. Elliott said. "The Supreme Court has ignored the solid science and has opened the door to convictions for non-disclosure even where the risk of transmission is negligible – in the realm of 1 in 100,000." The approach adopted by the court, "gives a stamp of approval to AIDS-phobia and fuels misinformation, fear and stigma surrounding HIV," Mr. Elliott said in an interview
The Montreal Gazette also interviewed Alison Symington, Senior Policy Analyst at the Canadian HIV/AIDS Legal Network.



Meanwhile, Marcus McCann's news story in Xtra.ca now has reactions from many in the HIV world, all of whom are reeling from today's decision.
Jay Koornstra is the director of Bruce House, a charity which provides housing to people living with HIV in Ottawa. He says that the Supreme Court failed to consider “the realities of HIV today.”
“Everyone has a responsibility to protect themselves and others. I don't think that this advances that approach to health.”
He also worries that the decision will give HIV-negative people the impression that they can simply assume partners are HIV-negative until being told otherwise — a poor strategy for protecting their health.
Tim McCaskell, another long-time AIDS activist, says that the law is out of step, requiring disclosure in cases where HIV-transmission is unlikely.
“Maybe we need two sets of safer sex guidelines. One to keep yourself and others healthy, and another to keep you out of jail,” he says.
Since HIV nondisclosure was criminalized, defence lawyers have looked for ways to limit the law's scope. The introduction of evidence of low viral load was one such way, especially in cases where condoms hadn't been used. But that's going to be more difficult now, says Micheal Vonn of the BC Civil Liberties Association.
“The advances that we were making at the lower courts have been cut off at the knees,” she says. “It's a huge setback. Massive.”
Meanwhile, AIDS service providers have been advising clients to use a condom in order to avoid the risk of prosecution — but with today's decision, that may no longer be enough.
“You can imagine the horror show that service providers are waking up to today,” she says. “There's so little concern [in the judgment] about what is going to happen to HIV positive people, many of whom have been very responsible about condom use.”
McCaskell also laments that the court missed an opportunity to clarify the law for all types of sex, rather than just vaginal sex between a man and a woman.
“The first email I got was, 'Do I have to use a condom when I give a blowjob?' The answer is, 'We don't know.'”
Or, as Koornstra says, “The grey area is still grey.”
McCaskell will now turn his attention to winning prosecutorial guidelines, which would come from the provincial Ministry of the Attorney General.
Cécile Kazatchkine of the Canadian HIV/AIDS Legal Network goes a step further.
“We are calling on police and crown prosecutors not to prosecute people when a condom is used or when there is a low viral load, because we don't believe it's in the public interest,”  Kazatchkine says. “Just because the Supreme Court has given the courts the power to prosecute these cases, it doesn't mean that they should.”
Failing that, HIV-positive people and their allies could lobby the federal government to change the law, Vonn points out. But given the Conservative government, “it seems unlikely at the current juncture that there would be any taste for this,” she says.
While the cases will have wide-ranging implications for HIV-positive people and those that love them, McCaskell called the acquittal of DC a “glitter in the gloom.”
“In terms of that personal story, this is good. This woman has been dragged through hell and back, and now she's been acquitted. But she was acquitted on a technicality,” says McCaskell.
Kazatchkine agrees.
“Justice has been done in that particular case.”

Update 3: Coalition of interveners press release
(Download the pdf here)

UNJUST SUPREME COURT RULING ON CRIMINALIZATION OF HIV MAJOR STEP BACKWARDS FOR PUBLIC HEALTH AND HUMAN RIGHTS

October 5, 2012 — As a coalition of interveners, we are shocked and dismayed at today’s ruling by the Supreme Court of Canada that says that even the responsible use of a condom does not protect a person living with HIV from rampant prosecution. The Court’s judgments in R. v. Mabior and R. v. D.C., two cases relating to the criminalization of HIV non-disclosure, are a cold endorsement of AIDS-phobia. They will stand as an impediment to public health and prevention, and add even more fuel to stigma, misinformation and fear. And they place Canada once again in shameful opposition to standards set out by international human rights bodies, UNAIDS and the Global Commission on HIV and the Law.

In its decisions, the Court purports to uphold its own 1998 decision standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But this is an illusory limit to the criminal law. It blatantly ignores solid science and opens the door to convictions for non-disclosure even where the risk of transmission is negligible, approaching zero. Even in 1998, when there was less science quantifying the small risks of HIV transmission than there is today and less effective treatment for HIV, the Supreme Court had ruled that condom-use might sufficiently reduce the risk below “significant” for the purpose of the criminal law. Yet now, 14 years later, despite significant advances in scientific knowledge, the Supreme Court decides condoms are not enough. In practice, today’s ruling means that people risk being criminally prosecuted even in cases where they exercised responsibility and took precautions, such as using condoms — which are 100% effective when used properly.

Adding to continued injustice, the Court’s actions will seriously undermine public health efforts. Criminalizing HIV non-disclosure in this way creates another disincentive to getting an HIV test and imposes a chill on what people can disclose to health professionals and support workers. People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads. 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. In short, the Court’s actions will have deleterious effects not only on the lives and health of people living with HIV, but on all of us, through fostering a climate of fear and recrimination.

While we welcome the Court’s acquittal of D.C. — an acknowledgement of at least one miscarriage of justice — the onus must now fall to those protecting the health and defending the dignity of people living with HIV. We also call on Crown prosecutors to use their discretion and refuse to be complicit in injustice just because the Court gave them the power to do so. It is not in the public interest to prosecute people living with HIV where condoms have been used or where a person has a low or undetectable viral load. Prosecutions in such cases will only perpetuate misinformation, pander to prejudice and undermine efforts at HIV prevention and treatment.

Signed, the interveners:
Canadian HIV/AIDS Legal Network
HIV/AIDS Legal Clinic Ontario (HALCO)
Coalition des organismes communautaires québécois de lutte contre le sida (COCQSIDA)
Positive Living Society of British Columbia (Positive Living BC)
Canadian AIDS Society (CAS)
Toronto People with AIDS Foundation (PWA)
Black Coalition for AIDS Prevention (Black Cap)
Canadian Aboriginal AIDS Network (CAAN)

Update 2: Canadian HIV/AIDS Legal Network responds

Richard Elliott, the Executive Director of the Canadian HIV/AIDS Legal Network, and one of the interveners in the Mabior case has this to say (via this blog post) about today's decision.
We are dismayed and shocked by the Supreme Court’s decision. It is a step backward for public health and for human rights. The Court purports to maintain the current standard that a “significant risk” of HIV transmission is required in order to trigger the legal duty to disclose. But given today’s judgment, this is an illusory limit to the criminal law. The Supreme Court has ignored the solid science and has opened the door to convictions for non-disclosure even where the risk of transmission is negligible – in the realm of 1 in 100,000. Such an approach gives a stamp of approval to AIDS-phobia and fuels misinformation, fear and stigma surrounding HIV. In practice, the Court’s ruling means that people risk being criminally prosecuted even in cases where they took precautions such as using condoms – which are 100% effective when used properly. This decision will not only lead to continued injustice but undermines public health efforts. It creates another disincentive to getting an HIV test and creates a further chill on what people can disclose to health professionals and support workers. People living with HIV need more health and social supports; they don’t need the constant threat of criminal accusations and possible imprisonment hanging over their heads.
And Marcus McCann who has been covering the case for Xtra.ca notes
The decision also clears the way for the Ontario Court of Appeal, which put off hearing appeals of two criminal cases pending today's decision from the Supreme Court. 

The new rules will apply to poz folks whose cases have not yet gone to trial, and to cases which are under appeal, like those before the Ontario Court of Appeal. HIV-positive people who are already serving time for HIV nondisclosure cannot have these new rules applied retroactively.

Update 1: My initial thoughts on risk

The CBC has a good, basic overview of the 9-0 decision - including video - here.

My first reading of the Mabior decision (the main Supreme Court ruling) leaves me with these initial thoughts.

We now have a new SCC phrase – "realistic possibility of HIV transmission" – to debate in court, because the 'condoms AND low viral load' ruling is actually based on the facts of the Mabior case alone.

The focus on viral load has somewhat backfired, resulting in this very conservative 'belt and braces' ruling. By highlighting the 052 study result (96%) and comparing with the Cochrane condom study (80%) the SCC ruled that not just condoms but condoms with a low viral load (which the SCC appears to define as below 1500 copies/ml) results in no "realistic possibility of HIV transmission".

Nowhere in the decision is there a discussion of the relative risks of the types of sex (oral, vaginal, anal) or the position of the person with HIV (insertive, receptive), I suppose because Mr Mabior only had insertive vaginal sex.  But still the risk of HIV transmission with a high viral load and no condoms via insertive vaginal sex is estimated by the CDC to be just 5 per 10,000 exposures (i.e. 1-in-2000).  Reduce that already low risk by either 80% or 96% and surely there is still no "realistic possibility of HIV transmission."

This is, of course, better than the blanket disclosure requirement regardless of risk argued for by the Crown, but does it really create any more clarity?

This will likely mean more convictions unless a good defence lawyer brings in a good expert witness to state that unprotected sex with a low viral load is not likely to be considered to result in a "realistic possibility of HIV transmission."

No doubt the Canadian HIV/AIDS Legal Network will provide a much more thorough analysis in the days to come.  Their intial response, via Twitter: "... a profoundly disappointing, damaging decision. And internally inconsistent as well."

Original post

The Supreme Court heard the two landmark cases (R v. Mabior and R v. DC) on February 8, 2012.

Download the Mabior decision here and the DC decision here.
This Court, in Cuerrier, established that failure to disclose that one has HIV may constitute fraud vitiating consent to sexual relations under s. 265(3)(c) Cr. C. Because HIV poses a risk of serious bodily harm, the operative offence is one of aggravated sexual assault (s. 273 Cr. C.). To obtain a conviction under ss. 265(3)(c) and 273, the Crown must show, beyond a reasonable doubt, that the complainant’s consent to sexual intercourse was vitiated by the accused’s fraud as to his HIV status. The test boils down to two elements: (1) a dishonest act (either falsehoods or failure to disclose HIV status); and (2) deprivation (denying the complainant knowledge which would have caused him or her to refuse sexual relations that exposed him or her to a significant risk of serious bodily harm). Failure to disclose may amount to fraud where the complainant would not have consented had he or she known the accused was HIV‑positive, and where sexual contact poses a significant risk of or causes actual serious bodily harm.

Two main criticisms of the Cuerrier test have been advanced: first, that it is uncertain, failing to draw a clear line between criminal and non‑criminal conduct, and second, that it either overextends the criminal law or confines it too closely — the problem of breadth. While it may be difficult to apply, the Cuerrier approach is in principle valid. It carves out an appropriate area for the criminal law — one restricted to “significant risk of serious bodily harm”. The test’s approach to consent accepts the wisdom of the common law that not every deception that leads to sexual intercourse should be criminalized, while still according consent meaningful scope.

The Cuerrier requirement of “significant risk of serious bodily harm” should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV. This view is supported by the common law and statutory history of fraud vitiating consent to sexual relations, and is in line with Charter values of autonomy and equality that respect the interest of a person to choose whether to consent to sex with a particular person or not. It also gives adequate weight to the nature of the harm involved in HIV transmission, and avoids setting the bar for criminal conviction too high or too low. If there is no realistic possibility of transmission of HIV, failure to disclose that one has HIV will not constitute fraud vitiating consent to sexual relations under s. 265(3)(c).

The evidence adduced in this case leads to the conclusion that, as a general matter, a realistic possibility of transmission of HIV is negated if: (i) the accused’s viral load at the time of sexual relations was low and (ii) condom protection was used. This general proposition does not preclude the common law from adapting to future advances in treatment and to circumstances where risk factors other than those considered in this case are at play. 

The Court’s decisions in these two appeal cases will have profound implications not only for people living with HIV, but also for Canadian public health, police practice and the criminal justice system.

This news story was updated five times over five hours to include community and political responses and analyses.  I will be writing a more coherent anyalsis for aidsmap.com on Monday.

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