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HIV-disclosure obligations under scrutiny in separate cases Add to ...

A landmark Supreme Court of Canada case involving a Quebec woman with HIV only reached the top court because of a cold snap that hit the province in early 2007.

The woman, who was facing trial at the time for not disclosing her HIV status to a lover, had rigged her car to commit suicide by asphyxiation. Her plan was thwarted when the engine failed to start.

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“In my head, it was all over,” the young woman said, in a documentary scheduled for release this week by the HIV-AIDS Legal Network. “I couldn’t live with this. I would be in prison for the rest of my life.”

The woman, identified only as D.C., was later convicted of aggravated assault, setting the stage for an appeal Wednesday that promises to have far-reaching effects for anyone with a serious, sexually transmitted disease.

Adding to the drama of her case, D.C.’s former partner lodged his allegation immediately after being convicted of assaulting her. Lawyers for D.C. argue that the woman diligently obtained medication and tried to reduce the likelihood of her transmitting the virus – yet an unduly harsh law was manipulated to destroy her life.

In a companion case to be heard Wednesday, a Manitoba defendant, Clato Lual Mabior, is appealing his 2008 conviction on six counts of aggravated assault. He was sentenced to 14 years in prison.

Mr. Mabior and D.C. are among a group of 130 individuals prosecuted since the Supreme Court criminalized the non-disclosure of a serious STD in 1998, in the case of R v Cuerrier. The Cuerrier decision held that anyone whose STD poses a “significant risk of serious bodily harm” must inform potential sex partners in advance.

However, advances in HIV medication and condom manufacture have steadily reduced the probability of transmission, making the Cuerrier standard a moving target for trial judges attempting to apply it. Many have looked to medical evidence and probability theory in an effort to decide whether a defendant’s viral load fell below the threshold where it must be disclosed.

Manitoba prosecutors Elizabeth Thomson and Amy Kotler will lead the charge in favour of creating an absolute right to be informed. In a brief to the court, they argued that anything less would put prospective sex partners at risk of being forced into a game of Russian roulette – whether or not the odds lie in their favour.

“While real progress has been made in the fight against HIV, it nevertheless remains an incurable, life-altering, potentially fatal disease,” the Manitoba brief said. “Certain acts are dangerous in and of themselves because they create the chance that someone could be hurt or killed. It does not matter that the chance of this occurring is small. The law aims to stop people from taking that chance.”

Only one judge remains from the court that issued Cuerrier, Chief Justice Beverley McLachlin. In her separate reasons for judgment, she had warned that the “significant risk” test was doomed to failure, observed Bruce Ryder, a law professor at York University’s Osgoode Hall Law School.

“Subsequent developments have confirmed the wisdom of her opinion,” Prof. Ryder said. “As she predicted, the Cuerrier standard has proven to be wildly unpredictable in operation.”

By casting too wide a net, he said that the Cuerrier standard can potentially criminalize just about anyone who is HIV-positive or has another STD such as herpes or gonorrhea.

In a written brief to the court, the HIV/AIDS Legal Network warns that an absolutist approach to disclosure obligations, “would trivialize the criminal process through a proliferation of prosecutions where the risk of harm is negligible – for example, kissing, oral sex without a condom – and cases where an HIV-positive person has taken steps to prevent transmission.”

It argues that the standard would inevitably induce some potentially infected individuals to avoid seeking medical help in case they are diagnosed with HIV and have to start informing all future sex partners.

In another unintended effect, it said, people who have a negligible HIV viral load may be blackmailed, abandoned by frightened partners or suffer discrimination.

Other academics, however, hone in on the consent aspect. “Whatever the degree of risk, a woman should have a choice of whether she wants to be exposed,” said University of Ottawa law professor Elizabeth Sheehy. “Why should she, the complainant, bear any risk?”

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