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Chief Justice Beverley McLachlin of the Supreme Court of Canada. (Fred Lum/The Globe and Mail)
Chief Justice Beverley McLachlin of the Supreme Court of Canada. (Fred Lum/The Globe and Mail)

Globe editorial

The Supreme Court weakens the protection of the right to say no Add to ...

For young people in particular, the world is now a scarier place. Until now, they had the right to consent knowingly if they had sexual intercourse with a partner with HIV. But the Supreme Court of Canada has taken that protection away, in cases where the infected person is receiving treatment and uses a condom. In those cases, says the court, there is no reasonable risk of transmission.

There are three main problems with that statement. One is its internal logic: the court accepts that neither antiretroviral treatment on its own nor condom use on its own is enough to make the risk so small that it is no longer significant. It quotes a medical expert as saying that condoms reduce the risk of transmission by 80 per cent. But a risk reduced by 80 per cent is probably still a risk.

A second problem is that, as the same expert pointed out, the “viral load” (the number of copies of the virus in the blood) can spike if the person has “common infections” or “treatment issues.” And not everyone with HIV (or any disease) is as strict and careful as they should be about regular treatment and monitoring. It leaves room for things to go wrong. Condoms break, and people catch colds.

A third problem is that reasonable people appear to believe they should have the right to know. One barometer of “the reasonable person” is the reaction of five women who had sex with a Manitoba man accused of not telling them of his condition (that man’s case was one of two before the Supreme Court). The five testified they would have withheld their consent if they had known. (A sixth, who was just 12 years old, said she would not have. But then, at her age she couldn’t give informed consent to sex.)

AIDs is not the death sentence it once was. But as the court said, it is still a chronic and sometimes fatal disease. And consent is a basic human right. On that point, the court was eloquent in making the connection between “Charter values” of autonomy and human dignity and the right to give informed consent to sexual intercourse.

In 1994, judge Ian Binnie called the unwitting exposure to HIV during sex “the stuff of nightmares.” In 1998, Madam Justice (now Chief Justice) Beverley McLachlin said a person with HIV who doesn’t disclose his condition “shocks the conscience.” Now the law sees that behaviour as acceptable, in some circumstances. It shouldn’t be.

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