Canada: 2 cases - Alberta man gets three years for non-disclosure; woman refugee arrested and charged in Ontario

A 44 year-old man from Edmonton, Alberta who pleaded guilty to aggravated assault for not disclosing that he was HIV-positive during a one-off consensual encounter with a woman – whilst his viral load was undetectable – has been has been sentenced to three years in prison.

According to the Toronto Sun report, he had been charged with aggravated sexual assault but was "allowed to plead guilty to the lesser offence of aggravated assault."  The report doesn't mention it, but obviously the woman did not test HIV-positive given the insignificant risk of transmission.

Apparently, the man's roommates turned him in.

Prosecutor Avril Herron told court Gilbertson was arrested June 3 after police were called by his roommates, who had come home and found him having sex with the woman and were concerned about his HIV status. Herron said the woman was drunk and initially found passed out and had some problems telling police the details of what exactly had happened.

In words that parallel Nadja Benaissa's recent statement to a Darmstadt court, he told the court that he had "made a bad choice," but said "in no way was it deliberate."

The provincial court judge questioned Gilbertson's guilty plea after he said he didn't mean to do it. However, he admitted he did not tell the woman he was HIV-positive. Gilbertson also told the judge he takes medications for the disease, which he claimed is barely detectable on tests, and said he has a full support team in the community looking out for his needs.

Judge Marilena Carminati appeared to have no sympathy for the man (nor a finer understanding of the impact of treatment on infectiousness – although perhaps a better lawyer would have helped), and as well as sentencing him to three years in prison ordered him to submit a DNA sample for the national DNA databank and, bizarrely, prohibited him from possessing weapons for life.


Meanwhile, a 32 year-old woman of Zimbabwean origin was arrested in Brampton, Ontario on August 10th for allegedly not disclosing that she was HIV-positive "with at least one sex partner on more than one occasion" during sex with a man who has since tested HIV-negative.

Details are sketchy, and oddly, the case only appears to have been reported on New Zimbabwe.com, a UK-based paper for the Zimbabwean diaspora.  The report states that that woman "arrived in Canada from Indianapolis, United States, as a refugee in 2008" but doesn't say when she left Zimbabwe (or why). 

The woman will face aggravated assault charges on September 13th at Toronto College Park courts and is currently out on "stringent bail conditions" that mean she is currently under house arrest.

Canada: Vancouver police hunt one man, add more charges to another

In Vancouver, two different men have been accused of not disclosing their HIV-positive status prior to sex with their female partners. Local media are having a field day.

The first, a Caucasian man in his late 20s, was arrested on May 19, according to a June 4th CBC News report following which North Vancouver police issued a press release that included the man's name and photo which appeared in news reports throughout Canada.

"Police have what is called a duty to warn when it comes to things like this and that is one reason we put out a name and photograph so quickly," [Const. Michael] McLaughlin told CBC News. "One of our primary responsibilities is keeping people safe, and enforcing the law goes along with that."

The fishing expedition has now turned up four further women who also claimed the accused did not disclose before sex, according to June 30th CBC News report that continues to carry the man's photo.

RCMP in North Vancouver are recommending four more charges of aggravated assault against [name of accused], who was first charged with the offence in May after police said he exposed his partner to the virus that causes AIDS without telling her. Since that charge was laid, four other women have come forward with enough evidence for investigators to recommend four more charges against [him], RCMP said in a release Wednesday.

The accused is out on bail "under court-imposed conditions that require him to tell any potential partners that he is HIV-positive."

Vancouver's tabloid, The Province, tells a rather different story - at least the headline appears to tell a different story.

Four more women say they were infected by HIV-positive man

Actually, no! They didn't. The actual story in The Province is very similar to CBC News' coverage - there is no mention of HIV-positive tests or accusations of infection.

The CBC and The Province coverage also includes the name (but not the photo) of a second man, a 38 year-old with an African name, from the Vancouver suburb of New Westminster. The man, who faces three counts of aggravated sexual assault for either not disclosing to one woman three times, or three women once, is presented by the police, and therefore the media, as a dangerous man on the loose.

CBC reports it this way

The offences date back to May of 2006 and there is a concern that [he] may have headed to Eastern Canada and will continue to have sex with women without telling them about his condition, police said.

The Province makes him seem much more like a calculated serial infector

New Westminster Mounties are hunting for 38-year-old [name of accused], who has been charged with three counts of aggravated sexual assault after having sex with three women while knowing he was HIV-positive. Crown counsel has issued a Canada-wide warrant for [his] arrest, as police believe he may have traveled to eastern Canada. The offenses he is charged with date back to May 2006, and police are concerned [he] may plan to put more women at risk.

These BC 'name, shame and create fear' cases are in direct contrast to the recent Vancouver court case where the accused was acquitted, and where the judge ordered a publication ban on the name of both the accuser and the accused.

They also contrast with a recent case in Edmonton, Alberta, analysed in an April 23rd Xtra.ca story, where a 50-year-old HIV-positive man was charged with aggravated sexual assault after allegedly failing to disclose his status to his female partner.

The piece quotes a police spokeswoman who explains that they did not release name or photo of the accused in order to protect the man's partner.

“Releasing any details would without a doubt identify the victim. We are not releasing the name of the accused strictly to protect the identity of the victim. This is not a case of an unknown male with HIV forcing sex on women. The sexual intercourse in this case was consensual. However, the male failed to inform the woman that he was infected with HIV."

In this case the accused man was released from custody with a trial set for March 2011.

Canada: Two more arrests as Xtra analyses criminalisation laws

In the past few weeks, there have been two further arrests in Canada for sex without condoms and disclosure. In Alberta, a 32 year-old Calgary man faces eleven counts of aggravated sexual assault based on a short-lived relationship he had with a woman over a couple of weeks: he was charged for each time they had sex. And in Ontario, police issued a warning/'fishing expedition' to women who may have had sex with a 32 year-old Peel man who they arrested and charged with aggravated sexual assault and sexual interference for having sex with someone under-age.

In the first of two articles to be published in Canada's GLBT paper, Xtra, Dale Smith examines the issues facing HIV-positive Canadians (including those who may be unaware they are infected) as arrests and prosecutions continue unabated.

The Xtra article includes interviews with Alison Symington, senior policy analyst with the Canadian HIV/AIDS Legal Network; Glenn Betteridge, a legal and policy analyst who has done work with the Ontario HIV Treatment Network; Isabel Grant, law professor at the University of British Columbia; and Barry Adam, senior scientist and director of prevention research with the Ontario HIV Treatment Network.

Highlights include these quotes:

“Canada was one of the first countries to start laying charges with respect to HIV exposure or transmission. It was the first Supreme Court in the world that had ever considered the issue.”

Alison Symington on Canada's role as world leader in criminalisation.

“We’re starting to understand more and more about the likelihood of transmission of HIV, and it’s not as high as I think some people assume that it is. Particularly if there’s anti-retroviral medications, it’s not immediately obvious that one act of sexual intercourse is likely to cause someone’s death. I think it’s a real stretch to make this murder, not only on policy grounds, but also on the narrow interpretation of Section 231.”

Isabel Grant on the lack of relevance between sexual HIV transmission and Section 231, which says that death as a result of aggravated sexual assault becomes first-degree murder.

“My worry is that the courts’ fixation on the issue of disclosure presumes that they’re discouraging transmission, but I don’t think that it works out in real life quite the way they think it does. People who disclose actually have a poorer record of safe sex than those who don’t, and [that] makes a certain amount of sense because disclosure is about trying to figure out if you can sero-sort or not, to find out if the other person is the same sero-status that you are. It becomes an invitation for unsafe sex.”

Barry Adam on why mandating disclosure is harmful.

“The law says that if you are suspicious, and you deliberately close your mind to the possibility of finding out, that’s considered wilful blindness and we treat you the same way as if you know. In this context, let’s say I’m not going to get tested for HIV because I really don’t want to know if I have it, because then nobody can charge me for passing it on. If that suspicion arises in your mind, and you deliberately close your mind to finding out, the law says you’re just as blame worthy.”

Barry Adam on not testing to avoid prosecution.

To read the full article on the Xtra website, click here.

Canada: Alberta judge, police believe that spitting transmits HIV

An Edmonton, Alberta man who claimed he was HIV-positive and then spat in the eye of a police officer has been sent to prison for five months for assaulting a peace officer, with the policeman's fear of infection being an aggravating factor in sentencing. The man was later (mandatorily?) tested and found not to be HIV-positive.

According to the Edmonton Sun, Judge Michael Stevens-Guille requires some HIV transmission training like his Ontario counterpart Jon-Jo Douglas.

"Spitting is disgusting," said Judge Michael Stevens-Guille, pointing out that, years ago, expectorating on someone was not considered to be worse than punching the person in the nose. However, as a result of the dangers of transmitting communicable diseases, it is now considered far more dangerous and there is a need to protect people like the police from such perils, said Stevens-Guille. The judge also noted it was aggravating that the police officer involved was "very frightened' by the potential he might have contracted the HIV virus and had to go through the worry of waiting for blood test results.

I agree with Judge Stevens-Guille on just one point: spitting is disgusting. However, although being spat upon is unpleasant, and may be a symbolic assault, it is not a way to transmit HIV.

Read this fascinating blog entry from Sally's Trove on what can be transmitted by spitting, and the history and legacy of US spitting laws.

Canada: Man who threatened mall cops with alleged HIV-infected needle gets eight months jail time

A man whose HIV status is unclear was jailed for eight months in Edmonton, Canada, after he pleaded gulty to three counts of assault with a weapon for threatening two shopping mall security guards and a police officer with a needle that he claimed was infected with HIV.

According to the Edmonton Sun, the man, who also pleaded guilty to lesser charges of two counts of possession of stolen property, has drug and alcohol problems.

[He] was approached by two security guards after being observed by security trying to break into a car in the mall's parking lot. When told he was being put under arrest, [he] said he had needles in his pocket that were infected with the HIV virus and then pulled one out. A city police officer then showed up and twice told him to put the needle down before attempting to take him down. [He] again brandished the needle and warned it contained the deadly virus and the officer jumped back. [He] then fled on foot, court heard. He was later nabbed by police.

[...]

Judge Terry Matchett called the Dec. 21 incident at Kingsway Garden Mall a "gravely significant" matter. "When he threatened to use a needle infected with the HIV virus on security officers and later on a police officer, it must have been a very difficult situation for them and requires a sentence that is a deterrent on others," said Matchett.

The man's lawyer also "conceded his threats involving the use of a needle supposedly containing a deadly virus were aggravating."

The lesson here, I guess, is that whether or not you are HIV-positive, don't threaten anyone with a 'dirty' needle.