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Monday 30 March 2009

Canada: Man sues Canadian government over lack of pre-2001 mandatory HIV testing (updated)

A Toronto man is suing the Canadian government for CAD$33 million (£18.5m) because it did not bring in mandatory HIV testing of immigrants until 2001.

Percy Whiteman is the former husband of Thai migrant, Suwalee Iamkhong, who was found guilty of transmitting the virus two years ago and is now fighting a deportation order.

Ms Iamkhong is appealing her conviction and sentence.

Headed by Justice Stephen Goudge, the panel signalled yesterday that her conviction appeal hinges in large part on whether Iamkhong could be believed when she claimed a blood test she underwent after arriving in Canada in 1995 led her to conclude she was HIV negative.

Iamkhong testified two years ago that when her former manager told her the test showed her to be "in the clear," she thought it meant an earlier test she underwent in Hong Kong, indicating she was HIV positive, was wrong. In fact, the Canadian blood test did not look for HIV.

Now fighting to remain in Canada, she is asking for her two year sentence to reduced by one day.

Sentences of two years or more deprive offenders such as Iamkhong, a landed immigrant, of the right to appeal a deportation order on humanitarian grounds.

The court has not yet decided Ms Iamkhong's fate. One wonders how far her ex-husband will get in suing the Canadian government.

Update: June 18th. The Ontario Court of Appeal has now reduced Ms Iamkhong's sentence by a day, reports the Toronto Star.

"Insofar as the impact of the sentence on the appellant is concerned, this is a serious consideration," [Justice Harry LaForme] said. "It appears that the future prospects of the appellant can be assisted or improved by imposing a sentence of two years less a day, rather than two years. In such a situation, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence."



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