Canada: Mabior sentenced to 14 years

Clato Mabior, the Sudanese migrant found guilty on six counts of criminal HIV exposure in Winnipeg earlier this year has been sentenced to 14 years in prison.

He was actually given a total sentence of 17 years (the Crown wanted 24) but Justice Joan McKelvey reduced it to 14 years "to bring the aggregate sentence in line with case law." Since he has already served the equivalent of five years since his arrest he actually gets to serve nine further years in prison before being deported back to the Sudan.

The case has brought up strong emotions in Canada, and I've included here a few pre-sentencing news reports as well as a very strongly-worded editorial from The Daily Graphic in Portage la Prairie, a small town in Manitoba not far from Winnipeg, which probably sums up how the average Canadian views the case.

Sex menace sentenced
HIV-infected man lured runaway girls with drugs
Paul Turenne
Winnipeg Sun
October 11th 2008

A Winnipeg man who had sex with "unsuspecting and vulnerable" partners as young as 12 without disclosing his HIV-positive status to them was handed a 14-year prison sentence yesterday.

Clato Mabior was arrested in March 2006 after the Winnipeg Regional Health Authority took the unprecedented step of issuing a public warning that the man was defying medical advice about his HIV and knowingly having sex with unsuspecting partners.

Police initially said they believed as many as 45 girls and women may have been victimized by the man, but Mabior was only tried in relation to 11.

In July he was convicted of six counts of aggravated sexual assault in relation to six of the victims, as well as one count each of invitation to sexual touching and sexual interference.

He was given a total sentence of 17 years for those crimes yesterday, but Justice Joan McKelvey reduced that to 14 years to bring the aggregate sentence in line with case law.

None of his victims has been diagnosed with HIV, something that is believed to be due to Mabior's medication reducing his viral load and therefore the potential for infection.

Court heard yesterday that one of his victims was 12 years old, and that Mabior had anal intercourse with the girl when he was well aware of her age.

Court also heard that another of the victims specifically asked Mabior whether he had any sexually transmitted diseases and he said no.

McKelvey called Mabior's actions "deliberate, intentional and in complete disregard of medical advice."

McKelvey noted that Mabior plied some of his victims with alcohol and drugs. At the time of his arrest, police said they believed Mabior had been luring runaways to his Sherbrook Street home with the promise of intoxicants and a place to stay.

The front lawn of the home was littered with empty beer cans and used condoms at the time, while Mabior's bedroom was decorated wall-to-wall with hardcore pornographic photos torn out of magazines.

When asked whether he had anything to say yesterday, Mabior began accusing witnesses of lying, then, after he was interrupted by his lawyer, told court "I want to die in my own country."

Mabior is originally from Sudan and will very likely be deported once his sentence is complete.

He has already served the equivalent of five years since his arrest and therefore has another nine to go.

Crown wants 24 years for HIV 'sex predator'
By DEAN PRITCHARD, SUN MEDIA
Winnipeg Sun
Fri, September 19, 2008
The Crown is seeking a 24-year prison sentence for a man who hid the fact he was HIV-positive from his young female sex partners.

Clato Mabior, 31, was convicted in July of six counts of aggravated sexual assault and one count each of sexual touching and sexual interference.

At a sentencing hearing yesterday, Mabior's lawyers asked Justice Joan McKelvey to consider a sentence of 13 or 14 years.

McKelvey reserved her decision. Mabior will return to court for sentencing Oct. 10. At trial, the victims -- one as young as 12 -- testified Mabior plied them with booze and drugs and engaged in repeated acts of unprotected sex without disclosing he was HIV-positive.

He knowingly withheld that information from his sexual partners on the basis that in all likelihood they would not have engaged in sexual contact with him," said McKelvey in convicting Mabior.

McKelvey called Mabior a sexual predator who preyed upon the young, vulnerable victims. At trial, defence lawyer Chris McCoy argued in many instances, Mabior's viral load was so low he was incapable of passing on the HIV virus.

No matter the risk, Mabior had a duty to disclose his health status, McKelvey said.

"Those that are infected with HIV cannot inappropriately and indiscriminately engage in sexual relationships for their own pleasure without regard to the consequences of others," she said.

Mabior was acquitted of three additional counts of aggravated sexual assault involving three different alleged victims. Mabior, a Sudanese refugee, is likely to face certain deportation upon completing his sentence.

HIV-positive Manitoba man hid disease from sex partners
Crown seeks 24-year prison term
Mike McIntyre
Winnipeg Free Press
Thursday, September 18, 2008

WINNIPEG - Manitoba justice officials are seeking a 24-year prison sentence for a Sudanese immigrant convicted of putting the lives of six young women at risk by hiding the fact he was HIV-positive and then engaging in unprotected sex.

The penalty, if granted, would be one of the longest ever given out in the province for a case not involving murder.

Lawyers representing Clato Mabior concede a harsh sentence is required, but say something in the range of 13 years is sufficient. Queen's Bench Justice Joan McKelvey has reserved her decision until Oct. 10.

Mabior was convicted earlier this summer on six counts of aggravated sexual assault, plus additional charges of invitation to sexual touching and sexual interference, in what is believed to be the country's most extensive case of its kind.

One of Mabior's victims was a 15-year-old girl who repeatedly broke down in tears as she described being raped by Mabior after he lured her from a temporary Child and Family Services "shelter" inside a downtown Winnipeg hotel with the promise of drugs and alcohol.

She was only 12 at the time.

"The accused preyed upon these vulnerable women, many of whom were underage and came from significantly compromised circumstances. Further, these women were supplied with alcohol and/or drugs and lured into a sexual relationship by a sexual predator," McKelvey said in handing down her verdict.

"His conduct was deplorable and despicable . . . and must be condemned in the strongest possible terms. Those that are infected with HIV cannot inappropriately and indiscriminately engage in sexual relationships for their own pleasure without regard to the consequences to others."

Mabior was cleared on charges involving three additional women after McKelvey said their evidence left her with a reasonable doubt.

Mabior was arrested in early 2006 following an unprecedented public warning by police and the Winnipeg Regional Health Authority that prompted several young women to come forward - including teenage runaways. Police in Brandon, Calgary, Vancouver, Toronto and London, Ont., were also notified about Mabior, since he lived in each city after immigrating to Canada from Sudan in 2000.

Mabior faces likely deportation, but would have to serve out his entire sentence before that occurs. He will be given double-time credit of five years for the 30 months he has already spent behind bars.

Last month, another HIV-positive man was sentenced to eight years in prison for exposing two former girlfriends to the potentially deadly virus by failing to warn them about his medical condition.

The 35-year-old man, who can't be named under a court order, is also facing deportation back to his native Africa.

Editorial: Strong message must be sent on irresponsible intercourse
Clarise Klassen, managing editor,
The Daily Graphic (Portage, Manitoba)
August 1st 2008

Sudanese refugee Clato Mabior.

Former CFL defensive lineman Trevis Smith.

In Canada, it is relatively easy to identify the people who have spread the HIV virus to their unsuspecting sexual partners. That’s because, in Canada, to not inform someone you are about to be intimate with you have a disease that could possibly kill them is considered aggravated sexual assault and treated firmly by the court.

The realities faced by Mabior’s and Smith’s victims are awful to contemplate: repeated tests over a span of time to see if they have contracted the disease, never knowing if they are in the clear. Or, if they do contract HIV, having to undergo medical treatment to keep it from developing into full-blown AIDS, and also having to disclose that to their future, potential sexual partners.

In Mabior’s case, the fallout is particularly brutal as the African immigrant, 31, plied his underage victims in Winnipeg with alcohol and drugs before having repeated unprotected sex with them. He was convicted of six counts of aggravated sexual assault and two extra counts of sexual touching and sexual interference on July 15.

Perhaps Mabior thought he could bring his old ways to his new home in Canada without consequences, since there are few personal repercussions for HIV-infected people in Africa who infect others. Thankfully, Canada’s justice system takes a dim view of such heinous acts. And Canada’s Medicare system gives victims a better chance of receiving the care they need, compared to Africa.

While Canada lays out the unwelcome mat for HIV aggressors, and there is some hope of justice for the victims, the opposite is true in Africa.

African countries are being decimated by the disease. According to the UNAIDS 2008 Report on the global AIDS epidemic, Sub-Saharan Africa is more heavily affected by HIV and AIDS than any other region of the world. An estimated 22.5 million people were living with HIV at the end of 2007 and approximately 1.7 million additional people were infected with HIV during that year. In just the past year, the AIDS epidemic in Africa has claimed the lives of an estimated 1.6 million people in this region. More than 11 million children have been orphaned by AIDS.

There are no quick solutions to the HIV/AIDS pandemic on that continent, and no justice for the victims, many of whom are the orphans whose parents have died from the disease and the few grandparents still alive to care for them. And the David-like international organizations that face off against that Goliath are to be commended for their uphill battle.

In Canada, the courts are seeking to nip such deadly sexual behaviour in the bud before it becomes more prevalent. If they make the punishment strong enough, it may act as a deterrence for others.

Smith got 5 1/2 years for knowingly exposing two women to the virus that causes AIDS without informing them of his condition in Regina. Mabior has yet to be sentenced. Since the only way he will be held accountable for his actions is to spend time in a Canadian prison, perhaps it would be best to keep him here, rather than release him to continue his criminally irresponsible ways back in the Sudan. That country already has enough problems — including civil war, genocide, starvation and hundreds of thousands of displaced people — without adding another Mabior to the awful mix.

Canada: Two criminal HIV exposure trials taking place in Winnipeg

Winnipeg is currently the criminal HIV exposure capital of the world with two trials currently taking place there. Of note, both of the accused are male African migrants.

The first concerns, Clato Mabior, 31, who has pleaded not guilty to 17 charges, including aggravated sexual assault (for rape with HIV exposure), forcible confinement and uttering threats involving eleven different women. According to the story in the Winnipeg Free Press, "legal experts say it's the biggest case of its kind in Winnipeg, and perhaps even in Canada."

(Actually the forthcoming murder trial of another male African migrant, Johnson Aziga, is definitely the biggest case in Canada, if not globally.)

The second is a continuation of the trial of an unnamed 35 year-old man that was halted last November after it was alleged that public health nurses acted inappropriately in the handling of his case.

Confusingly, both cases are reported in this single story from the Winnipeg Free Press below. I have edited it slightly to make it a little less confusing. There is also a second story, from CTV.ca in 2006, providing some background to the Mabior case.

Chilling details in HIV sex trial
Teen alleges she was lured from shelter and repeatedly raped
By Mike McIntyre
May 13, 2008

A 15-year-old girl repeatedly broke down in tears Monday as she described being raped by an HIV-positive man who lured her from a temporary Child and Family Services "shelter" inside a downtown Winnipeg hotel with the promise of drugs and alcohol.

The teen, who was only 12 years old at the time, was the Crown's first witness in a month-long Queen's Bench trial.

Clato Mabior, 31, has pleaded not guilty to 17 total charges, including aggravated sexual assault, forcible confinement and uttering threats involving 11 different victims. Legal experts say it's the biggest case of its kind in Winnipeg, and perhaps even in Canada.

"I was scared. He has a life-threatening disease and he didn't tell me he had it," the youngest alleged victim testified.

A large screen was put up in court so she wouldn't have to stare at Mabior, who sat in the back of the room with sheriff's officers.

The girl said Mabior -- who she knew as "K-Dog" -- had oral, vaginal and anal sex with her on several occasions and never disclosed his illness. She later found out from another teenage friend he was HIV-positive. "She told me to stop having sex with him," she said.

The teen has since tested negative for HIV.

The girl said Mabior ignored her protests to stop and would ply her with beer and even crack cocaine on one occasion inside his Sherbrook Street rooming house. She met Mabior when he began hanging around the Place Louis Riel hotel, where CFS had placed her while waiting to find a more permanent housing solution after she had been seized from her birth parents.

Placing CFS wards in hotel rooms was once a common and controversial practice. Provincial statistics show more than 100 children at a time were being temporarily placed in hotels during 2006. Critics were outraged children were being warehoused because of a shortage of foster or shelter beds in the province.

A provincial ban was announced last year following a series of sweeping reviews of Manitoba's troubled child welfare system. The teen said she eventually told police and her social worker about Mabior after they tracked her down inside his home.

Mabior was arrested in early 2006 following an unprecedented public warning by police and the Winnipeg Regional Health Authority that prompted several young women to come forward -- many of them teenage runaways.

Police in Brandon, Calgary, Vancouver, Toronto and London, Ont., were also notified about Mabior, since he lived in each city after immigrating to Canada from Sudan in 2000.

The police and WRHA warning came two weeks after the Free Press exposed that health authorities did not go to police for three years about another HIV-positive man they believed was having unprotected sex.

[In this second case, also on trial this week in Winnipeg] the 35-year-old African immigrant -- who can't be named under a court order -- is accused of putting the lives of several girlfriends at risk by hiding the fact he was HIV-positive and then engaging in unprotected sex.

His trial began last November and resumed Monday in Winnipeg.

The man took the stand in his own defence and denied any wrongdoing.

He claims he warned his partners about his illness, but they still elected to have sex with him despite the risk.

His alleged victims include a 17-year-old girl who got pregnant -- then tried to run over him with her van after learning the truth about his health. She eventually miscarried.

The man told court Monday the teen thought he was joking when he first told her about his status prior to having sex. She then never brought the issue up again as their relationship moved forward, he said.

Another victim says she began dating the accused in 2000 and had his baby in the fall of 2005. The woman told court of a rocky relationship that included several warning signs about the man's condition.

A third alleged victim has since tested positive for HIV. However, Queen's Bench Justice Nathan Nurgitz agreed with a defence motion Monday to find there was insufficient evidence to proceed with that charge. That's because the woman admitted under cross-examination to having unprotected sex with the accused even after she knew he was HIV-positive.

More charges laid against HIV-infected Wpg. man
Fri. Mar. 24 2006 11:58 PM ET
CTV.ca News Staff

New charges have been laid against an HIV-positive Winnipeg man who is already facing allegations of aggravated sexual assault.

Clato Lual Mabior, 28, was initially arrested last weekend after allegations that a teenage girl was sexually assaulted during a drinking party.

Const. Jacqueline Chaput of the Winnipeg Police Service said Friday that more than 25 potential victims have come forward since police issued a notice about the man on March 21.

Authorities took the unprecedented step of making the Winnipeg Regional Health Authority order public after they considered the suspect's behaviour a potential health risk to others.

Chaput said it will take time to interview all of the new callers, but so far police have determined there are at least two alleged victims.

"Every case has to be assessed individually, so at this point we can't comment as to how big or small this could be," said Chaput.

Police say Mabior was involved in a relationship with a 17-year-old female between Feb. 20 and March 31, 2005, during which time they had unprotected sex. Authorities allege he did not tell the girl about his health issues.

On two occasions between Feb. 1 and Feb. 28, an 18-year-old female acquaintance of Mabior was spending the night at his residence when she was allegedly sexually assaulted by him and prevented from leaving.

The Winnipeg Regional Health Authority order against Mabior told him not to have unprotected sex, not to frequent prostitutes and to disclose his HIV-positive status to potential sex partners.

Mabior was charged with aggravated sexual assault, forcible confinement and uttering threats to cause death or bodily harm on March 19 in connection with the 17-year old female.

On March 23, Mabior was arrested and charged with two more counts of aggravated sexual assault and two more counts of forcible confinement.

Police say these new charges stem from incidents in 2005 involving two other people.

Mabior is currently being detained at the Winnipeg Remand Centre.

Mabior told CTV Winnipeg on Wednesday that he has done nothing wrong. He said he informs all his sexual partners of his health status.

"And if she doesn't believe me I say okay, I have sex with you, but I have to use a condom."

Mabior has also lived in Toronto and Brandon, Man., but it's unknown if anyone has come forward in these cities.

"We will be working in conjunction with other police departments regarding Mabior and his activities," said Chaput.

Police are advising any people who have had any type of sexual relations with Mabior seek medical attention immediately and contact the Winnipeg Police Service Sex Crimes Unit at (204)xxx-xxxx.

Canada: Swiss statement on infectiousness fails to impress judge in Mabior case

The trial of Clato Mabior, the Sudanese migrant found guilty on six counts of criminal HIV exposure in Winnipeg earlier this month, was exceptional in a country where trials for criminal HIV exposure and transmission take place on an almost weekly basis.

First, the Mabior case is difficult for those of us who want to challenge criminal prosecutions for HIV exposure or transmission due to the nature of Mr Mabior's other offences. It has resulted in a strong-worded editorial in the Winnipeg Free Press (see below) which suggests that the Canadian public cares little about understanding important issues such as the effect of treatment on transmission risk, or why disclosure is not necessarily the best way of protecting oneself and others from HIV.

All HIV infected persons are told of their obligations to sex partners. If they break the rules, they should be subject to a health order and police intervention -- second chances merely put innocent persons at risk. Mabior's warped sense of obligation and desperate attempt to rationalize his depraved conduct indicate a need to balance risk with the swift and heavy hammer of police action when trust is breached.

Second, and even more important, the transcript of the verdict by Queen's Bench Justice Joan McKelvey, who presided over the trial is the first I’ve seen to seriously consider up-to-date science on the effect of HIV treatment on the risks of HIV exposure, as well as deal with the vexing issue of residual risks with condom use.

The defence argued that Mabior’s state of mind was that he did not believe he was infectious, and submitted the recent Swiss statement on the effect of treatment on infectiousness. However, expert testimony from Dr John Smith, who concluded that Mr Mabior may have been uninfectious for some of the time, also stressed that condoms were only 80% reliable. (An excellent review of condom effectiveness by Michael Carter of NAM, can be found here).

The Crown argued that the CDC and WHO disagreed with the Swiss, and this had the effect of persuading Justice McKelvey that the Swiss were probably wrong, that the Swiss statement only applied to monogamous couples with disclosure.

[81] The evidence of the accused's undetectable viral load and its relationship to HIV transmission was also considered by the Crown. The Crown submitted that there was no evidence to suggest that a significant risk of serious bodily harm did not exist when viral loads were undetectable. There was argued to be a continuing risk that HIV could be passed through sexual intercourse in such circumstances. The issue was not related to a percentage of risk, but instead concerned the potential consequences of transmission, which were described as lethal. If there was any chance of transmission, there was an intolerable risk. The Thornton case was argued to evidence such a finding.

Justice McKelvey concluded the following:

[101] The statements of the CDC and WHO express very well the continuing risks of the transmission of this disease.

[104] I am also persuaded that endangerment of life has been proven in those circumstances where protection was utilized. This finding is supported by the evidence of Dr. Smith that condoms are considered to be only 80% reliable.

[105] This finding of endangerment of life includes those complainants who were exposed while the accused's viral load was considered to be low, suppressed or undetectable. I have found the medical and scientific evidence to be very persuasive that even with an undetectable viral load, there remains a risk of transmission of HIV with resultant endangerment of life. This is particularly so given the medical evidence that other influences or factors such as STDs or the use of female contraception can affect or “spike” a viral load.

[106] There was a continuing risk that HIV could be passed upon sexual intercourse in all of the circumstances. I find from the evidence that there was endangerment to life for each of the complainants in this case.

She also noted that the Swiss statement – and the publicity about it – happened three years after the events for which Mr Mabior was on trial.

Worryingly, she also found that since that there is residual risk even when condoms are used, due to their 20% 'failure' rate, a "significant risk of serious bodily harm existed".

[116] I am not prepared to follow the decision in Edwards with respect to the issue of protected intercourse based upon the medical evidence which was presented in this case and the “reliability” factor related to condom use. In this context, it is important to recall the evidence of Dr. Smith which stated that condoms are only 80% reliable and constitute an 80% reduction in HIV incidence. (Report, p. 6). Further, cases such as Thornton have demonstrated that a 99.3% screening safety rate was still considered to be too significant a risk in those circumstances. I am persuaded that in those circumstances where protection was used and the accused was regarded as infectious by the medical evidence, that a significant risk of serious bodily harm existed.

However, she did accept that "the combination of an undetectable viral load and the use of a condom would serve to reduce the risk below what would be considered a significant risk of serious bodily harm."

I have made the 65 page transcript of Justice McKelvey's ruling available to download as a pdf document (484 KB) in full from my website: here.

(Click here for a page refresh with all postings on the Clabior case)

HIV precedent
Winnipeg Free Press
July 17, 2008

There is a telling element in the case of an HIV-infected Winnipegger convicted this week of having unprotected sex with six young women. His defence rested on his contention that medical science shows the risk of passing on HIV during sex was so low that he had no responsibility to tell his partners he was carrying the AIDS virus.

Clato Lual Mabior, a man who preyed upon vulnerable young women and girls, is an unlikely authority on the relative risks of transmitting HIV. One victim testified that she was raped and that intercourse had been anal and unprotected, much riskier than protected vaginal sex. As well, the health status of the sex partner can change those odds dramatically: A woman with a sexually transmitted disease is much more susceptible to HIV. Mabior had multiple sex partners, increasing risk further.

None of this, however, is germane to the charges he faced. Anyone who does not inform a sex partner he or she has HIV can be found guilty of aggravated sexual assault. Mabior is facing deportation to his native Sudan, after he serves his sentence here. But that can be little solace to his victims, who faced or face years of uncertainty over their own health. It is little comfort to the general public to know that although Mabior was in contact with public health officials who repeatedly warned him of his obligations to his sex partners, he abandoned any sense of responsibility and decency for his own pleasure. He was not served with a public health order, under which he could have been detained, until police charged him with sexual assault. At that point, the Winnipeg Regional Health Authority took the unprecedented step of issuing a public notice, identifying the fact he was HIV-positive.

Mabior, like another man before the courts on similar charges, was given the benefit of doubt by public health authorities, tasked with counselling and monitoring those with HIV and AIDS. The latter man was given repeated warnings, despite officials learning he was having unprotected sex. Understandably, a public health worker treads a fine line as health practitioner and public watchdog, but the cases indicate the pendulum must swing further into the realm of public interest.

All HIV infected persons are told of their obligations to sex partners. If they break the rules, they should be subject to a health order and police intervention -- second chances merely put innocent persons at risk. Mabior's warped sense of obligation and desperate attempt to rationalize his depraved conduct indicate a need to balance risk with the swift and heavy hammer of police action when trust is breached.

Canada: African migrant guilty of HIV exposure in Winnipeg

Winnipeg resident, Clato Mabior (whose case was previously reported here) has been found guilty of criminal HIV exposure.

He remains in custody until sentencing, but may be deported to his birthplace, the Sudan.

Story from the Winnipeg Free Press below.

Winnipeg court convicts HIV-positive immigrant in sex-assault case
Mike McIntyre
Winnipeg Free Press
Tuesday, July 15, 2008

WINNIPEG - A Sudanese immigrant was convicted Tuesday of putting the lives of six young Winnipeg women at risk by hiding the fact he was HIV-positive and then engaging in unprotected sex.

Clato Mabior, 31, now faces likely deportation after what's believed to be the country's largest case of its kind.

Queen's Bench Justice Joan McKelvey said Mabior's conduct was "deplorable and despicable . . . and must be condemned in the strongest possible terms.

"Those that are infected with HIV cannot inappropriately and indiscriminately engage in sexual relationships for their own pleasure without regard to the consequences to others."

No date for sentencing has been set. Mabior remains in custody.

Mabior was convicted on six of nine sexual-assault allegations, plus additional charges of invitation to sexual touching and sexual interference.

He was cleared on charges involving three additional women after McKelvey said their evidence left her with a reasonable doubt.

One of Mabior's victims was a 15-year-old girl who repeatedly broke down in tears as she described being raped by Mabior after he lured her with the promise of drugs and alcohol from a temporary Child and Family Services "shelter" inside a downtown Winnipeg hotel.

She was only 12 years old at the time.

"The accused preyed upon these vulnerable women, many of whom were underage and came from significantly compromised circumstances. Further, these women were supplied with alcohol and/or drugs, and lured into a sexual relationship by a sexual predator," said McKelvey.

Mabior was arrested in early 2006 after an unprecedented public warning by police and the Winnipeg Regional Health Authority that prompted several young women to come forward - many of them teenage runaways.

Police in Brandon, Man., Calgary, Vancouver, Toronto and London, Ont., were also notified about Mabior, since he lived in each city after immigrating to Canada from Sudan in 2000.

Canada: (UPDATE with documents) Montreal woman prosecuted in revenge, sentenced to a year in the community, acquitted on appeal

Update: April 28 2011
In December 2010, the Court of Appeal acquitted the Montreal woman known as D.C. of the charges based on the fact that her viral load was undetectable at the time of single alleged one-off unprotected encounter, and therefore she did not pose "a significant risk of serious harm" to her ex-partner.

Thanks to a colleague in Canada, I now have the (unofficial) English translation of the full text of the judgement, highlights of which are below.  The full text can be downloaded here.

 [103]    The test is twofold: the significance of the risk, and the seriousness of the harm.
[104]    At what level is the risk sufficiently "significant" and the harm sufficiently "serious" to characterize a particular conduct as criminal?
[105]    In the case of HIV, the seriousness of the harm is undisputed. HIV infection remains a serious one, [translation] "potentially fatal", according to Dr. Routy, regardless of the brilliant advances made by medicine in recent decades. According to current medical data, HIV infection is irreversible. The drugs developed to fight this disease are efficient, but they come with significant side effects and the challenge of striking a balance between the ability to control the virus and the ability of the patient to tolerate the medication remains.
[106]    In Mabior, in paragraph 64, Steel J.A. wrote:
64     Nonetheless, I do not think it can be disputed that being infected with HIV subjects an individual to serious bodily harm. Although no longer necessarily fatal if treated medically, HIV is an infection that cannot be cured at this time and is a lifelong, chronic infection. For those who become infected, it is a life-altering disease, both physically and emotionally. Individuals must take medications every day, and the condition is potentially lethal if they do not have access to treatment or fail to take the medications. Even with treatment, HIV infection can still lead to devastating illnesses. Moreover, the emotional and psychological impact of dealing with such a disease is, no doubt, overwhelming. In their factums, both the accused and the intervener acknowledged that acquiring HIV constitutes serious bodily harm.
[107]    I share her opinion.
[108]    The significance of the risk is a more difficult question to solve. At which point can one say that the risk is "significant"? 1 in 50,000, 1 in 10.000, 1 in 1000, 1 in 100, 1 in 10? The complete absence of risk is certainly not the test that Cuerrier intended us to apply.
[109]    The argument claiming that, in light of the seriousness of the harm associated with HIV, any risk of transmission is "significant" cannot be accepted without distorting the test.
[110]    For the failure by HIV-positive individuals to disclose their condition to partners to be sanctioned by criminal law, the risk of transmitting the virus must be significant.
[111]    In Mabior, in paragraphs 68 and 69, Steel J.A. wrote:
68     I agree that the nature of the harm can affect the determination of what is considered to be a significant risk. As the magnitude of the harm goes up, the threshold of probability that will be considered significant goes down. However, to have required a complete elimination of risk rather than a significant risk was an error in law.
69     So one must determine what constitutes a "significant risk" of transmission in any particular case.  ...
[112]    I agree. Each case must be assessed by the light of its own circumstances.
[113]    Again in Mabior, in paragraph 113, Steel J.A. wrote the following on the subject:
113     Consequently, no comprehensive statement can be made about the impact of low viral loads on the question of risk. Each case will depend on the facts regarding the particular accused, and each case will depend on the state of the medical evidence at the time and the manner in which it is presented in that particular case.
[114]    Once again, I agree.
[115]    In the present case, according to the evidence on the record, the viral load was undetectable, and remained so for the whole period of time identified in the indictments, that is, June to August of 2000. At the time, the risk of transmitting HIV during unprotected sexual intercourse was 1 in 10,000. Without being zero, the risk was, according to Dr. Klein, [translation] "very weak, very minimal", or, according to Dr. Routy, [translation] "very, very low".
[116]    Also, we must not lose sight of the fact that in this particular case, unprotected sexual intercourse only occurred once before the complainant was informed of the appellant's HIV-positive status.
[117]    In this context, I believe that the fact that the appellant did not disclose that she was HIV-positive did not expose the complainant to a "significant risk of serious harm" within the meaning of Cuerrier.
[118]    The words used by both experts to quantify the risk, that is, [translation] "very weak", [translation] "very minimal", and [translation] "very, very low", are incompatible with the existence of any significant risk whatsoever.
[119]    With respect for the trial judge, I believe the Crown did not establish that the complainant's consent to unprotected sexual intercourse, prior to being informed of the appellant's HIV-positive status, was vitiated by fraud.
[120]    Consequently, there was no sexual assault and, therefore, no aggravated assault.
[121]    In Mabior, Steel J.A. concluded her reasons by saying that she understood that for the complainants, any risk of being infected was too much risk, and that they would have wanted to know prior to consenting to sexual intercourse. She adds that this point of view is shared by many, at least from an ethical or moral standpoint, but that, for the time being, this is not the test that the judiciary must apply. As the test was conceived at a time when the fight against HIV was in its infancy, Steel J.A. alluded to the possibility that the Supreme Court might want to revisit the test of "significant risk of serious harm" in order to dispel any inherent uncertainty. I add my voice to hers and note that in light of its numerous social, ethical, and moral ramifications, the initiative of revisiting the entire notion of transmission risks for serious infectious diseases, in the context of Canadian criminal law, should be the responsibility of Parliament.
[122]    For these reasons, I would allow the appeal, set aside the judgment under appeal, and acquit the appellant of the two charges brought against her.

This is not the end of the story, however.

The Crown has sought leave to appeal and the case is likely to be heard in the Supreme Court later this year or early next year.

Along with the much more complex Mabior case, who was also partially acquitted on appeal due to his using a condom or due to his undetectable viral load when not using a condom and which is also headed for the Supreme Court, these two cases will revisit the 1998 Cuerrier decision and may establish new tests for "significant risk of serious harm" as it relates to non-disclosure of HIV status prior to sex.

Original post: July 15 2008
The Montreal woman who was found guilty of HIV exposure in May, has been sentenced to a year to be served in the community. The woman, who was only prosecuted in revenge for reporting her (now ex) partner to the police for being violent against her and her 18 year-old son, was so ill that the judge could not imprison her.

I have already commented on this tragic case in my previous posting, but what I will say here is that judging from the comments on the CBC's website, where the story was reported, I am very worried about the state of public opinion in Canada.

Although a few people pointed out the real issue – that she was victimised by Canada's criminal justice system for having a law that allows disgruntled exes to make a complaint about a 'crime' that they had no problem with until their feelings changed towards to their ex-partner – many said the law was anti-male because many men, including Canadian football player Trevis Smith – have been jailed for much longer for 'similar crimes'.

Others have gone further, calling her a potential murderer, or for the names of "these carriers of HIV" to be made public "for the good of the society", highlighting the fact that the criminalisation of HIV exposure and transmission, and media reports about the trials, serve as lightning-rods for public opinion about people living with HIV. In the minds of so many Canadians, the woman from Montreal – and 'people like her' – are responsible for the HIV epidemic in their country.

The truth couldn't be further from this myth. An incredibly important and robust study from Quebec published last year found most HIV transmission comes from the undiagnosed; half of it during the first six months of infection. It is undiagnosed people with HIV, rather than those who are diagnosed, who are primarily exposing and transmitting HIV to their sexual partners.

Not only is it undiagnosed HIV that is perpetuating the HIV epidemic; diagnosed people on successful treatment are now considered to be sexually non-infectious by some experts, and the policy of treating people to prevent transmission is now a reality in British Columbia.

How can one arm of policy - Canada's criminal justice system - be so far behind the thinking of another arm? Getting people tested and on treatment is the most effective way of mitigating the epidemic. Laws criminalising individuals may create a moral tone, or exact revenge in a victim/perpertrator paradigm sort of way, but it does nothing to mitigate the HIV epidemic, and may actually make things a lot worse.

And although these trials create the illusion that HIV-positive people are primarily vectors of transmission, and the media reports of the trials can be innacurate and stigmatising, the rise of Web 2.0, with its interactive comments (even those which are moderated, such as the CBC's), adds insult to injury.

On the other hand, perhaps reading these comments is the best way of gauging public opinion. even though the judge in the forthcoming Johnson Aziga murder trial doesn't think that ordinary Canadians have "fears, assumptions and prejudices about HIV, which may feed into [their] judgments and assumptions about [people] accused [of HIV exposure and transmission] and [their] ability to assess the evidence in a calm rational fashion."

I can't help but wonder whether the dozen or so prosecutions in Canada this year have adversely influenced public opinion and that the judge is wrong.

1 year sentence for HIV-positive woman guilty of assault
Sentence to be served in community because of woman's health, court says
CBC
Wednesday, July 9, 2008

A Quebec woman living with AIDS has been given a one-year sentence, to be served in the community, for hiding her HIV status from her former boyfriend.
Quebec Judge Marc Bison handed down the sentence on Tuesday, after the woman was found guilty of aggravated assault against her ex-boyfriend for failing to tell him she was HIV-positive when the two started courting.
The woman acted irresponsibly and committed a serious crime by depriving her ex-lover of the right to decide whether he wanted to have sex with her despite her status, Bison said at the Longueuil courthouse.
Anyone with a condition as serious as HIV has a legal duty to inform his or her partner, because the virus is not like a common cold, he said.
The sentence would normally be served in prison, but because of her fragile health, she will serve it in the community, the judge said. The woman is in a treatment centre waiting for experimental drugs.
A publication ban in the case prevents the man and woman from being named, but they can be identified by their initials.
When the couple first started dating in 2000, D.C testified she initially withheld her HIV status from J.L.P., but after three months told him she was infected, the court was told.
J.L.P. decided to stay in the relationship. D.C. testified in court they used condoms from the beginning of the relationship, but the court determined the couple had unprotected sex at least one time.
HIV complaint made after assault charge laid
The couple broke up five years later, after the man was charged with assault following the woman's complaints of domestic abuse.
While his case was pending, J.L.P. alerted police about D.C.'s failure to disclose her HIV status, and she was charged with aggravated assault. J.L.P. was never infected with the virus.
This winter, the Quebec court found J.L.P. guilty of assaulting D.C. and her 18-year old son, but was eventually given an absolute discharge with no criminal record.
The Quebec Coalition of AIDS organizations was disappointed by the case's outcome.
The onus was on J.L.P. to protect himself and practise safe sex, said spokesman Ken Monteith.
The situation would have been different if D.C. had repeatedly had unprotected sex with J.L.P. without telling him, he said.
D.C. has been HIV positive since 1991. She contracted the human immunodeficiency virus from her ex-husband.

Canada: Analysis and implications for people with HIV following Supreme Court HIV non-disclosure decisions

The Canadian HIV/AIDS Legal Network has published three important new resources in the aftermath of last month's devastating Supreme Court decision which found that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission.

Not disclosing in such circumstances means a person with diagnosed HIV could be convicted of aggravated sexual assault.

As well as a detailed analysis in a briefing paper (aussi disponible en français) and a shorter info sheet, the Legal Network has produced a very helpful – if depressing – Q&A for people living with HIV (aussi disponible en français) as well those who support and advise them.

It is clear from these analyses that the Supreme Court's decisions are a major step backwards for human rights and for public health.

I am reproducing below the commentary from their briefing paper as well as the Q&A, with permission.  For the entire text, with footnotes and references, please visit the  Canadian HIV/AIDS Legal Network website.

Canadian HIV/AIDS Legal Network
HIV non-disclosure and the criminal law: An analysis of two recent decisions of the Supreme Court of Canada (R. v. Mabior, 2012 SCC 47, R. v. D.C., 2012 SCC 48)

On October 5, 2012, the Supreme Court of Canada released its decisions in the cases of Mabior and D.C. The Court decided that people living with HIV have a legal duty, under the criminal law, to disclose their HIV-positive status to sexual partners before having sex that poses a “realistic possibility” of HIV transmission. Not disclosing in such circumstances means a person could be convicted of aggravated sexual assault. In defining when there is a “realistic possibility” of transmission, the Court has set the bar very low. At this time, the only sex that the Court has recognized as not posing a realistic possibility of HIV transmission is vaginal sex that takes place when (1) a condom is used, AND (2) the person living with HIV has a low or an undetectable viral load. If both of these conditions are met, then there is no obligation under the criminal law to disclose one’s HIV status. However, the Court has not clarified how the requirement to disclose in the case of a “realistic possibility” of transmission applies to any sexual activity other than vaginal sex.

Commentary

For people living with HIV and for those working in the field of HIV prevention and care, these decisions are a major step backward from the Supreme Court of Canada’s previous decision in Cuerrier. While the Court said it was maintaining the “significant risk” test it previously established in 1998, it has deprived the word “significant” of much meaning. A “significant risk” of transmission must now be understood as a “realistic possibility” of transmission, and the Court says this includes anything higher than a “negligible threshold” or anything more than a “speculative possibility.”

By deciding that there is a duty to disclose before vaginal sex unless both a condom is used and a person’s viral load is low (i.e., where the risk is almost zero), the Court effectively decided that almost any risk, no matter how small, could trigger a duty to disclose, even as the Court also declared that it did not want to criminalize “any risk, however small.” This was but one of numerous contradictions in the Court’s judgments in these cases. In essence, the Court purported to put some limit on the scope of the criminal law, but that limit was largely illusory.

The Supreme Court recognized that although the law must ensure that consent to sex is meaningful, “not every deception that leads to sexual intercourse should be criminalized.” It also stated that there must be a balance between a sexual partner’s interest in autonomy and equality in consenting to sex, which values are entrenched in the Canadian Charter of Rights and Freedoms, and “the need to confine the criminal law to conduct associated with serious wrongs and serious harms.” The Court further acknowledged that an overly broad use of the criminal law would be unfair and stigmatizing for people living with HIV, and that the experience of other common law jurisdictions “sounds a note of caution against extending the criminal law beyond its appropriate reach in this complex and emerging area of law.”

Yet despite these multiple warnings, the Supreme Court of Canada chose to expand the scope of the criminal law in cases of HIV non-disclosure and to clearly indicate that its new test of disclosure being required in the case of a “realistic possibility” of transmission is “specific to HIV.” Moreover, although the Court was clear that “[t]he potential consequences of a conviction for aggravated sexual assault ... underline the importance of insisting on moral blameworthiness in the interpretation of [the law],” it failed to address the issue of the mens rea (i.e., “guilty mind”) required to obtain a conviction for HIV non-disclosure, as had been suggested by the coalition of AIDS organizations. As a result, based on the Court’s decisions in Mabior and D.C., a person who acts responsibly by taking highly effective precautions to protect their partner, and who has no intent to cause harm, can face charges of aggravated sexual assault.

Finally, the Court did say that the law should be open to “adapting to future advances in treatment.” Such advances could further affect both the risks of HIV transmission and the harm associated with HIV. But very significant advances have already taken place. When treatments are available, HIV is already a chronic and manageable disease. Moreover, the impact of treatment on dramatically reducing what are already very small risks is now well established. It is therefore unfortunate that the Court refused to consider this existing evidence about the impact of low viral load sufficient to preclude criminal charges.

In addition to its contradictory approach to assessing and criminalizing the risk of HIV transmission, the Court’s approach to consent was also deficient. The Court made a passing reference to an earlier, leading case (R. v. Ewanchuk) about when consent to sex is not valid; Ewanchuk concerned rape myths and situations where there was no real consent to sex because it was forced or because a person was afraid to refuse. The Court also repeatedly asserted that its approach in Mabior and D.C. was in line with the Charter values of equality and sexual autonomy.

But nowhere did the Court meaningfully analyze how the law protects personal autonomy and advances equality (i.e., specifically for women) by overriding the consent of an adult to engage in sex solely because of the absence of certain information they might prefer to know. The Court ignored the cases decided in Canada since Cuerrier on HIV non-disclosure and much of the analysis emerging from various other, similar jurisdictions where the trend is to limit the criminal law. Whether or not the Supreme Court wants to admit it, people do have sex without full and complete information about their sexual partners all the time — including in circumstances which can give rise to some risk of serious harm. Yet the law does not step in to all such circumstances to override consent and criminally prosecute the lack of disclosure of information.

Consenting adults are capable of deciding whether to have protected or unprotected sex without being aware of whether a particular partner does or does not have HIV or another sexually transmitted infection (STI), and do so often. Contrary to the Court’s basic assumption, sexually active adults are not deprived of their autonomy, including their ability to decide whether to practise safer sex, simply because they lack information about a sexual partner’s HIV or other STI status.

The Court also failed to consider the challenges associated with disclosure of a heavily stigmatized and misunderstood condition: repercussions can include loss of privacy, discrimination and rejection, and even violence. Lack of disclosure may not be about asserting force over another person in order to gain sexual gratification — which is the assumption behind equating it with aggravated sexual assault — so much as about protecting oneself from violence or other harm. By broadly asserting that this is about protecting the dignity and autonomy of the sexual partner without any examination of the range of factors at play when people have sex, the Court revealed a shallow understanding of the values that it purports to protect when criminalizing HIV non-disclosure, even in cases where the risk of transmission is miniscule. Such an approach trivializes sexual assault and diverts the law from protecting women’s physical and sexual autonomy.

In addition, the Supreme Court decisions in Mabior and D.C. did not provide much certainty in the law. There are many questions that remain unanswered and that will be tested in courts on the backs of people living with HIV. Do people have a duty to disclose before they engage in oral sex? What about those who have an undetectable viral load at the time they have oral sex? How do these decisions apply to anal sex?

Finally, these decisions further undermine public health and the rights of people living with HIV. They create additional disincentives to seek HIV testing and will discourage some people from talking with their counsellors and physicians about their sexual and disclosure practices, as medical and counselling records can be subpoenaed and used in criminal investigations.

The Court’s decisions will also disproportionally affect the most vulnerable. Access to treatment was once an issue of public health and social justice. Now it is also a criminal issue. People with inadequate access to care, treatment and support may not be able to establish a low viral load. If they do not or cannot disclose their status — including because of fear of violence or other negative consequences — they will be exposed to criminal conviction and imprisonment. Based on the Supreme Court of Canada’s judgments, a condom alone is not sufficient to avoid conviction.

The Court has put another tool for coercion into the hands of abusive partners. This can only exacerbate the vulnerability of HIV-positive people in abusive and/or violent relationships to blackmail and threats of prosecutions, an outcome that will disproportionately affect women living with HIV. In summary, the Court’s decisions in Mabior and D.C. make already bad and unclear law, which has resulted in uneven application and injustice in numerous cases, even worse — for people living with HIV, for HIV prevention and care efforts, and hence for public health.

Q&A: Implications of recent Supreme Court of Canada decisions for people living with HIV

When do you have a legal duty to disclose your HIV-positive status to a sexual partner?

The Supreme Court of Canada says that you must disclose your status before having sex that poses “a realistic possibility of transmitting HIV.” But the Court also found that almost any risk is “realistic,” no matter how small. Based on the Court’s decisions, you have a legal duty to disclose:

▪ before having vaginal or anal sex* without a condom (regardless of your viral load); or
▪ before having vaginal or anal sex* with anything higher than a “low” viral load (even if you use a condom).

* See below for more information on the duty to disclose and anal sex.

In summary, either using a condom or having a low viral load is not enough to preclude criminal liability in cases of HIV non-disclosure when it comes to vaginal and anal sex.

When don’t you have a duty to disclose?

The Supreme Court of Canada was clear that you do not have a duty to disclose before having vaginal sex if (1) your viral load is low or undetectable and (2) you use a condom. Both of these are required.

▪ NOTE: Your viral load does not need to be “undetectable.” A “low” viral load is sufficient. What this means remains to be defined in subsequent cases. However, based on the Supreme Court of Canada decisions, it seems that it should at least include any viral load below 1500 copies of the virus per millilitre of blood.

What is still unclear?

There is still a lot of uncertainty in the law. Because the cases before the Supreme Court of Canada only dealt with HIV non-disclosure in the context of vaginal sex, it is not clear how the test of a “realistic possibility of transmission” will be applied to other sexual acts.

▪ What about anal sex?
Anal sex poses higher risks of transmission than vaginal sex, so the duty to disclose is at least as strict as for vaginal sex. In other words, you have a duty to disclose before having unprotected anal sex or when your viral load is higher than “low.” It might be the case that, as with vaginal sex, if you use a condom and your viral load is low, you don’t have a legal duty to disclose. But at this time, we can’t say for certain if satisfying both these requirements (condom use plus a low viral load) will be enough to avoid convictions in the case of anal sex.

▪ What about oral sex?
Oral sex (without a condom) is usually considered very low risk (i.e., an estimated risk ranging from 0 to 0.04%). We don’t know at this point whether courts will find that there is a duty to disclose before oral sex without a condom. We also don’t know whether it makes a legal difference if you are receiving or performing oral sex, or whether the amount of semen or vaginal fluid that the person performing oral sex is exposed to can make a legal difference.

What if you have a low or undetectable viral load AND use a condom but the condom breaks?

This is a very difficult question to answer and there are several factors that you should take into account:

▪ Although this issue was not addressed by the Supreme Court of Canada, you may have a duty to disclose in the case where a condom breaks.

▪ Disclosing your status after a condom breaks could be relevant to your sexual partner in deciding whether to seek “post-exposure prophylaxis” (PEP) with antiretroviral drugs to further reduce any risk of infection.

▪ But disclosure in such circumstances may also expose you to an increased risk of violence and/or threat of prosecutions. HIV continues to generate a lot of fear and misconception. Your partner may have a bad reaction if he or she discovers that you are HIV-positive after a condom breaks.

How can you protect yourself against prosecutions?

There is no guaranteed way to avoid being accused of HIV non-disclosure. People may lie or make mistakes about whether disclosure took place and/or whether a condom was used. But there are things you can do that may reduce the risk of criminal prosecutions or conviction for HIV non-disclosure.

▪ Tell your sexual partners that you are HIV-positive before sex, and try to get proof that you told them about your status (e.g., disclose your status in front of a witness before having sex, such as a counsellor or doctor, who can document that disclosure took place, or sign a joint document).

N.B.: Please be aware that any document that would establish that you had sex prior to disclosure might work against you. This could especially be the case if you had vaginal or anal sex before you first disclosed and, at the time of that sexual act, you did not use a condom or you cannot establish that your viral load was low or undetectable at that time.

▪ Use a condom when you have vaginal or anal sex and see a doctor regularly to create a record of your viral load test results showing lowered viral load.

Other important things to know about the Supreme Court of Canada decisions and the legal duty to disclose:

▪ There is no distinction between silence and a lie. People may face criminal charges for not disclosing their status whether their partners inquired about their HIV status or not.

▪ There is no distinction based on the circumstances of a particular encounter, including the type of relationship. People may face criminal charges whatever the type of relationship they had with their partner (e.g., whether with a casual partner versus a spouse) and whether the sex was for love, fun, money, procreation or drugs.

▪ People living with HIV can be prosecuted even if they had no intent to harm their partner.

▪ People living with HIV can be charged with aggravated sexual assault for not disclosing their status. An aggravated sexual assault is a sexual assault that “endangers the life” of the other person. It carries a maximum penalty of imprisonment of life and mandatory registration as a sexual offender.


The information contained [above] is information about the law, but it is not legal advice. For legal advice, please contact a criminal lawyer.

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

This summary is not available. Please click here to view the post.

Canada: Second African migrant guilty of HIV exposure in Winnipeg

Following the high-profile case of Clato Mabior, a second African migrant in Winnipeg - a 35 year-old unnamed man – has been convicted of two counts of aggravated sexual assault (criminal HIV exposure). He will be sentenced next month.

The case was halted last November after it was alleged that public health nurses acted inappropriately.

It's not clear why the man's identity has been protected, but it makes a very welcome change.

See news report, below, from the Winnipeg Sun.

Judge rejects HIV small talk, convicts man of assault
By DEAN PRITCHARD, SUN MEDIA
July 19, 2008

An HIV-positive Winnipeg man has been convicted of two counts of aggravated sexual assault after a judge rejected his claim he informed two girlfriends of his health status before having unprotected sex with them.

The 34-year-old African immigrant -- whose identity is protected by a publication ban -- testified at trial he told one woman of his HIV status after she found a condom in his pocket and another during a visit to her Arlington Street home.

He said both conversations took only a matter of minutes and the topic only came up again when one woman became pregnant.

Justice Nathan Nurgitz said yesterday he found the man's evidence "seriously lacking in credibility."

"To have discussions of such life-threatening issues lasting only minutes is simply not believable," Nurgitz said.

CHARGES TOSSED
The man has remained in custody since his arrest in May 2006. He will return to court for sentencing next month.

At trial earlier this year, Nurgitz tossed out charges involving a third woman after she admitted she continued to have sex with the man after learning he might be HIV-positive.

A now 22-year-old woman testified at trial she tried mowing the man down with her car five years ago after learning he had exposed her to HIV. "I was trying to kill him," the woman told court. "I was going to run him over, put the car into reverse and run him over again to make sure he was dead."

The man escaped unharmed after the woman chased him onto a sidewalk and blew a tire.

The offender is the second HIV-positive man in a week to be convicted in Winnipeg of aggravated sexual assault. On Tuesday, Clato Mabior was convicted of six counts of aggravated sexual assault involving six adolescent and teenage girls.

At trial, the victims testified Mabior plied them with booze and drugs and engaged in repeated acts of unprotected sex without ever disclosing he is HIV-positive.

Canada: Urgent - support the call for prosecutorial guidelines in Ontario

Canada is facing its most critical point in the history of criminalisation of HIV non-disclosure since the Supreme Court's 1998 Cuerrier decision which found that not disclosing a known HIV-positive status prior to sex that poses a "significant risk" of HIV transmission negates the other person's consent, rendering it, in effect, a sexual assault.

In February 2012, the Supreme Court will hear two cases - Mabior and 'DC' - that will re-examine whether Cuerrier remains valid in the light of inconsistent lower court decisions regarding what constitutes a "significant risk" of HIV transmission in the context of sexual transmission, especially when the person with HIV wears a condom and/or has an undetectable viral load due to effective antiretroviral therapy.

The main thrust of the arguments from both sides is that the "significant risk" test is unfair and should be reassessed.  However, Manitoba's Attorney General (who is appealing the Manitoba Court of Appeal's decision to partially acquit Mr Mabior due to his using a condom or due to his undetectable viral load when not using a condom) is arguing in its appellants factum that the only fair legal test is whether or not a person with HIV disclosed before any kind of sexual contact, because figuring out whether the risk at the time was significant enough is too complicated. It also argues that such non-disclosure should be charged as aggravated sexual assault, which carries a maximum 14 year sentence for each episode of unprotected sex without disclosure.

Lindsay Sinese, in excellent recent blog post from The Court, examining both Mabior and DC as they head to the Supreme Court, highlights what is already problematic about attempting to prove non-disclosure in cases that are often based on he said/(s)he said testimony.

In the jurisprudence surrounding HIV criminalization, th[e DC] case reads like frustrating déja vu, exhibiting several characteristics common to many of the more than 130 people living with HIV who have been subject to criminal charges. Namely, the parties rarely agree on the facts of the case, particularly on whether or not the sexual intercourse in question was protected, how many times it occurred and under what circumstances. These critical facts obviously present significant obstacles with regards to proof and the situation devolves in a “he said, she said” scenario.

The inability to prove the key elements upon which the case turns leaves the outcome to be very unpredictable. As a result, the cases tend to hinge on the credibility of the parties, the determination is, at best, a loose science, and, at worst, an exercise in hunch-based guess work.

Another problematic factor in this realm of prosecution is that charges are frequently laid after the dissolution of a relationship. It could be argued that some of the complaints may be brought for vengeful and vexatious purposes. By leaving HIV positive people vulnerable to criminal prosecution, we are sanctifying the punishment of an already vulnerable group, and pushing this community further onto the fringes of society.

The greatest disappointment, however, is that Ontario's Attorney General has joined with the AG's of Manitoba and Quebec (where DC was tried) by obtaining intervener status.

In an application this week to the Supreme Court of Canada, the Office of the Ontario Attorney General asks to be granted intervener status in an upcoming high-profile case revolving around those living with the human immunodeficiency virus, which can lead to AIDS. It argues that the current legal standard the courts must meet has led to different interpretations across the country, resulting in "uncertainty and unfairness" in the Canadian legal system. To remedy this, the government argues that criminal liability should be based only on whether or not someone disclosed his or her HIV-status before engaging in sexual activity and not just on the safety risks they pose.

This is a major slap in the face to the Ontario Working Group on Criminal Law and HIV Exposure (CLHE) campaign urging Ontario’s Attorney General to develop prosecutorial guidelines for Crown prosecutors handling allegations of HIV non-disclosure.  The working group produced an excellent report in June 2011 which calls for restraint in HIV non-disclosure prosecutions and provides detailed legal and practice guidance covering general principles; bail; scientific/medical evidence and experts; charge screening; resolution discussions; sentencing; and complainant considerations. The report, available here, is a must-read for all advocates working in their own countries to obtain prosecutorial guidelines.

In a recent email, CLHE co-chairs Ryan Peck and Anne Marie DiCenso outline the problems they perceive with the promises made by the Ministry of the Ontario Attorney General's and its current position as intervener.

In December 2010, Chris Bentley, the former Attorney General, promised to develop guidelines. Since then, the Ministry of the Attorney General has not informed CLHE when it will be honouring its commitment to develop prosecutorial guidelines, and has not responded to CLHE’s guideline recommendations. CLHE’s recommendations are at http://www.catie.ca/pdf/Brochures/HIV-non-disclosure-criminal-law.pdf.

It is particularly troubling that the Attorney General, after committing to develop guidelines, has filed materials at the Supreme Court of Canada calling upon the Court to rule that people living with HIV must disclose their HIV status before any sexual activity whatsoever, and that not disclosing should be prosecuted as an aggravated sexual assault, which is one of the most serious offences in the Criminal Code.

When asked about this position, former Attorney General, Chris Bentley, indicated that although the intervention materials advocate for the elimination of the current significant risk test, the Attorney General of Ontario has no intention of taking such a position at the Supreme Court of Canada.

It is vital that the Attorney General fulfill the promises made.

But, as of today, we have not received any guarantee from the new Attorney General, John Gerretsen, that the Ministry of Attorney General will amend its intervention materials and take the position that people living with HIV should not be prosecuted when there is no significant risk of HIV transmission.

The Ministry of the Attorney General has until December 20 to submit its final materials to the Supreme Court.  While preparing the materials, the new Attorney General, John Gerretsen, needs to know that the community is mobilized and is watching him.

The most effective way to do this is for everyone who reads this post to endorse the call for guidelines. While the Ministry may care more about Ontarians signing the call, I have had it confirmed from my contacts at CLHE that signatures from other jurisdictions would be very helpful.

When you sign the call the following email (which you can personalise if you want) will be sent to the new Attorney General, John Gerretsen, urging him to develop guidelines by December 31, 2011.

Dear Minister Gerretsen,
I am writing to congratulate you on your new post as Attorney General, and to urge you to take action on an important issue.

As you know, your predecessor, the Honourable Chris Bentley, committed in December 2010 to draft guidelines for criminal cases involving allegation of non-disclosure of sexually transmitted infections, including HIV.

I urge you to draft these much-needed guidelines by December 31, 2011. I also urge you to take into account the broad-based community input provided to the Ministry of Attorney General by the Ontario Working Group on Criminal Law and HIV Exposure (the Working Group). In spring 2011, the Working Group consulted over 200 people -- people living with HIV/AIDS; communities affected by HIV; legal, public health, criminal justice and scientific experts; health care providers; and advocates for women's rights in the context of sexual violence and the criminal justice system. In June 2011, the Working Group provided the Ministry with their Report and Recommendations based on these consultations.

I trust that you will draft guidelines by December 31, 2011, and that you will provide the Working Group and its constituents with an opportunity to review and provide input on this draft.

Guidelines are urgently needed to ensure that HIV-related criminal complaints are handled in a fair and non-discriminatory manner.  
Please take action.