Canada's highest court will decide if an HIV-positive man who was being treated and sometimes used condoms still put his sex partners at "significant risk."
The Supreme Court of Canada on Thursday agreed to hear the case of Clato Mabior, a Winnipeg immigrant serving time in jail for failing to disclose his illness to two partners.
Mr. Mabior was originally convicted of six counts of aggravated sexual assault and sentenced to 14 years in prison. But four of those convictions were overturned by the Manitoba Court of Appeal last year. The court found not everyone who had sexual relations with him was exposed to "significant risk."
Mr. Mabior was given a lighter sentence of just 10 more months in jail before his release. He is to be deported back to Sudan once he gets out.
The Crown appealed to the Supreme Court in December.
Crown attorney Elizabeth Thomson said the case raises questions about how much someone with HIV/AIDS has to disclose when seeking consent from a partner to have sex. Up until now, she said, the courts have relied on a Supreme Court ruling from 1997 that states people with the condition can be prosecuted if they haven't disclosed their illness and expose their partner to "significant risk."
"Since then, medical matters have changed quite a bit in terms of people with HIV," Ms. Thomson said. "At the end of the day, it's about consent and whether or not the risk is diminished to the extent that they don't have to seek consent by giving notice of the HIV positive."
The Supreme Court said it will consider "whether failures to disclose HIV-positive status before sexual intercourse with different sexual partners did not place those partners at a significant risk of serious bodily harm."
Mr. Mabior was undergoing antiretroviral therapy and used condoms in a few of his encounters. None of his partners has tested positive for HIV, the court noted.
Cecile Kazatchkine, policy analyst with the Canadian HIV/AIDS Legal Network, said HIV-positive people need to know exactly what they must disclose to avoid prosecution. Canada has one of the highest prosecution rates in the world but the law has been applied inconsistently, she said.
Experts agree someone undergoing antiretroviral therapy is much less likely to pass on the illness, she said. And while public health experts repeatedly tell HIV-positive people that using condoms will prevent transmission, Ms. Kazatchkine said the courts haven't always agreed.
"This has led to great uncertainty in the law, which has made the lives of people living with HIV in Canada extremely difficult because they just don't know what the law expects from them," she said.
"Some people have been sent to jail even when they used reasonable precautions."
The Supreme Court must clarify what constitutes "significant risk" and make its ruling based on medical evidence and advancements, she suggested.
A lawyer representing Mr. Mabior did not immediately return phone calls requesting comment.
Mr. Mabior came to Canada in 2000 and was arrested in 2006 following a countrywide warning that involved police in Calgary, Vancouver, Toronto and London, Ont. The provincial appeal court dismissed four convictions against him, citing medical testimony that there was a "high probability" Mr. Mabior was not infectious even though he had unprotected sex with the women.
The two convictions that were upheld involved unprotected sex during periods when he would have been more infectious. In its ruling, the appeal court suggested the Supreme Court take another look at the issue to "provide all parties with more certainty."