The Supreme Court of Canada stated on Friday that individuals who know they are HIV positive are liable to criminal prosecution for aggravated sexual assault if they do not disclose this fact prior to sex that may risk a “realistic possibility of transmission of HIV”.

The unanimous decision rejected the Government’s argument that there should be a blanket law requiring people with HIV to disclose regardless of the risk, stating that the duty for an HIV-positive individual to disclose can be exempted, but only when a condom is used and the individual also has a low viral load.

The court also reaffirmed the 1998 Supreme Court ruling (R v Cuerrier), which established that a person who knows they are living with HIV has a duty to disclose their HIV-positive status before engaging in conduct that poses a ‘significant risk’ of HIV transmission.

Non-disclosure (regardless of whether this is active deceit or simply no verbal discussion of HIV risk) will continue to be treated as fraud that invalidates consent to sex. If it can also be shown that the sexual partner would not have consented had they known the accused was HIV positive, this is considered aggravated sexual assault, which carries a maximum sentence of life imprisonment and registration as a sex offender.

Chief Justice Beverley McLachlin, writing the decision for the court, appreciated that the 1998 Cuerrier decision was not explicit enough regarding what constitutes a ‘significant risk’ of HIV transmission and acknowledged that this has led to inconsistent and overly broad interpretations by Canada’s police and lower courts.

Although the 1998 decision had suggested that the “careful use of a condom” may lower the risk so that it is no longer ‘significant’, this was not binding. In recent years, courts have convicted HIV-positive individuals for having sex with a condom and/or oral sex alone while others have been acquitted for unprotected anal sex.

The two cases under review by the Supreme Court – R v Mabior and R v DC  – had previously been subject to rulings at the Courts of Appeal of Manitoba and Quebec, respectively, which found there was no duty to disclose when a condom was used or when the individual with HIV had an undetectable viral load at the time of the alleged exposure.

A 2011 study, not cited the by the court, found that the lack of clarity over the duty to disclosewas resulting in “anxiety [and] confusion” for people living with HIV and led to “contradictory HIV counselling advice” by healthcare workers.

In setting the new precedent, the court stated that “condom use is not fail-safe” and referred to a 2002 Cochrane systematic review of condom effectiveness in reducing heterosexual HIV transmission which concluded that consistent use of condoms results in 80% reduction in HIV incidence.

Despite also noting the results of the HPTN 052 study, the court referred to expert witness testimony from the original 2008 trial, which stated that relying on a low or undetectable viral load that results from antiretroviral therapy was not “a safe-sex strategy”.

“However, on the evidence before us, the ultimate percentage risk of transmission resulting from the combined effect of condom use and low viral load is clearly extremely low – so low that the risk is reduced to a speculative possibility rather than a realistic possibility,” wrote Chief Justice Beverley McLachlin for the court.

The court did not set an actual level for an acceptably low viral load, but offered a description, based on the evidence of the Mabior case. “When a patient undergoes antiretroviral treatment, the viral load shrinks rapidly to less than 1,500 copies per millilitre (low viral load), and can even be brought down to less than 50 copies per millilitre (undetectable viral load) over a longer period of time. This appears to be scientifically accepted at this point, on the evidence in this case.”

Nevertheless, the court left open the possibility of adapting to future changes in scientific knowledge about HIV-related risks and the long-term effects of living with HIV, which it noted was “indisputably serious and life-endangering. Although it can be controlled by medication, HIV remains an incurable chronic infection that, if untreated, can result in death.”

The court also addressed – and firmly rejected – public health arguments against overly broad criminalisation of HIV non-disclosure and potential or perceived HIV exposure. “The only ‘evidence’ was studies presented by interveners suggesting that criminalization ‘probably’ acts as a deterrent to HIV testing,” wrote Chief Justice McLachlin. “The conclusions in these studies are tentative and the studies were not placed in evidence and not tested by cross-examination. They fail to provide an adequate basis to justify judicial reversal of the accepted place of the criminal law in this domain.”

Legal scholar, Isabel Grant, whose recent article exploring the issues faced by the Supreme Court was extensively referred to in the R v Mabior decision told Postmedia news that she expected to see more criminal cases under the new interpretation of the law. “They pretty much went as far as they could have gone in the direction of criminalization,” she noted.

A coalition of HIV and human rights organisations led by the Canadian HIV/AIDS Legal Network, which acted as interveners in the two cases, issued a statement saying it was “shocked and dismayed” at the ruling, calling the decision “a major step backwards for public health and human rights”.

They noted that the court’s standard of a ‘realistic possibility’, was “an illusory limit to the criminal law [that] blatantly ignores solid science and opens the door to convictions for non-disclosure even where the risk of transmission is negligible, approaching zero”.

In making the rulings, the court upheld an appeal court decision to acquit ‘D.C.’, a Montreal woman accused of not disclosing her HIV status to her former partner, based on the fact that she had an undetectable viral load and used a condom, but reinstated three convictions against former Winnipeg resident, Clato Mabior, who was deported to South Sudan in February.

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.”

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.”

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)

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.